Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter ^ | 6/27/03 | Deal Hudson

[cherrycapital]

Don't you Bible-beaters have something better to do than worry about other people's sex lives?

[cherrycapital]

I disagree with the whole substantive due process reasoning, by the way, for the same reasons mentioned by the article. However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)

[Van Jenerette]

Hmmm...Can universities and schools make or enforce rules aimed to prevent consensual sexual relations between teachers and non-minor students if it is done in the 'privacy' of a hotel or home?

By this ruling doesn't ALL ADULT CONSENSENUAL SEX with other consenting ADULTS become protected private behavior?

[B-Chan]

No, because we want our Judeo-Christian culture back.

This is only a first step. Wait until they come for your kids... and they will. Lust is never satisfied; it is the one "natural resource" which knows no limit.

[Owen]

There are two questions for conservatives with regard to homosexuality. 1) Is a homosexual a human being? 2) Does the practice help society, and this question should probably be interpreted narrowly from the perspective of reproduction.

1) Do conservatives believe homosexuals are not human? If we did, we would determine that someone who intentionally kills a homosexual had not committed murder. I don't think even the most extreme of conservatives would take this position.

2) Homosexuals are not going to reproduce biologically. Period. In the past, this mattered a great deal and society, which needed to grow, would oppose it on those grounds. Times have changed, but not all that much. We still have tax deductions for kids. We, as a society, still encourage growth to that degree. The sadness of parents whose child "comes out" has nuances. Some of it is not selfless. Some of it mourns for their own future joy of grandkids. And some mourns for the unhappiness they feel their own child will endure.

So. We, as conservatives, would do well to keep in mind that there are two ends to this spectrum. Our distaste is thoroughly constrained by item 1 above. Item 2 merely guides where on the shades-of-gray spectrum our position should be.

[Arkinsaw]

Of course, you are 98% ignorant of what I'm referring to. Go back to your TV and vegetate. Everything is just fine.

I'm of the belief that these laws are lame. The State has no business in the bedrooms of consenting adults. Most of the jurisdictions do not enforce them for this reason and they have been repealed willy-nilly.

But my dislike for these laws does not blind me to what the Supreme Court has done and what it portends for the future. This is another manufactured out of thin air ruling. Scalia's scathing attack on it is right on the money. People are pretending that there is no such thing as precedent and that lower court judges will apply this ruling to everything under the sun. We rage about the 9th circuit court but can you imagine what that court will use this ruling to justify in the future?

You are right, if the number is 99% then I'm with you as part of the 1%

[only1percent]

Private universities certainly can restricts relationships between faculty and adult students, since they're not subject to the 9th or 14th amendments.

As to whether those rules would stand up to a Lawrence scrutiny in a public university, I suspect the answer is "no, but it doesn't matter." Rather than being subject to defense, as must adult consensual sodomy laws, against the lowest possible threshold of state rights, public universities get to appeal to a much higher set of state public policy objectives -- in other words, the state can use the rationale of the Michigan law school affirmative action case, and say that it is necessary to impinge upon the professor's rights to screw whomever he chooses in order to maintain the essential qualities of access and diversity on campus (the theory being that professor-student affairs negatively impact women).

[tdadams]

I'm of the belief that these laws are lame.

Or, in the words of the court, "uncommonly silly."

[cherrycapital]

If my kids want to be gay, that is a-ok with me. You can have all the Judeo-Christian culture you want in your own homes and churches. But the government is not your private goon squad for the enforcement of Christian morals. At least not anymore.

[Arkinsaw]

Don't you Bible-beaters have something better to do than worry about other people's sex lives?

I could care less about other's sex lives. But I care very much about the Supreme Court manufacturing half-baked decisions just to reach a social goal. Having unelected people in black robes legislate is not my idea of progress.

[aristeides]

The sky actually is falling. Yesterday, in Limon, the Supreme Court vacated the sentence of someone who had homosexually molested a 14-year-old boy, on the basis of Lawrence. So much for Lawrence just being about ending the criminal prosecution of sex between consenting adults.

[dogbyte12]

The Supreme Court can not overturn a Constitutional Amendment

Isn't is a pity that you are required to remind somebody of this fact?

If the congress and the states pass an amendment that states all cheese except for Extra Sharp cheddar is illegal, the supreme court must honor that as law.

The constitution is living, each time it is amended it changes. If people genuinely want changes, they can petition the congress to pass an amendment. If for example, somebody wants to jail homosexuals, they could pass an amendment to the constitution, get it ratified by the states, and it would be the law of the land.

Why is this concept so difficult for people to grasp?

[bvw]

Even this warning is too limited. The theory the Justices applied doesn't stop at sex, doesn't even stop at privacy. AS of the time Thursday this rulling came out, we are officially an anarchy. Every single Judge can make whatever ruling pleases him, no according to rule, precedent, morality, common standards, etc.

[Jim Noble]

The process used in arriving at this ruling is worse than the result.

Mr Justice Kennedy, for the Court:

"These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex".

So now, the Court claims the right to rule by discerning "emerging awareness" on the part of the population.

No need for voting, no need to listen to those selected through voting, no means to question the justice's perception of "emerging awareness" - if the laws passed by the People do NOT reflect "emerging awareness" what else can possibly do so?

The power to issue rulings based on a justice's discernment of "emerging awareness" is exactly the power claimed by the French revolutionaries to rule in the name of the General Will.

It is pure despotism, and it doesn't matter if they use the power to outlaw sodomy or to require it.

The consequences to a Free Republic are the same.

[dogbyte12]

The sky actually is falling. Yesterday, in Limon, the Supreme Court vacated the sentence of someone who had homosexually molested a 14-year-old boy, on the basis of Lawrence. So much for Lawrence just being about ending the criminal prosecution of sex between consenting adults.

How about the rest of the story though Aristiedes. The molestor was a mentally delayed man of the age of 18 years old and 1 week. If the victim was a 14 year old girl, he would have received 15 months in prison, but Kansas differentiated between molesting a girl, or molesting a boy, and sentenced him to 17 years instead of the 15 months. The Supreme Court in no way said it was illegal, or unconstitutional to write laws sentencing everybody to 17 years in jail for statutory rape, but that the sentences must be equal.

Again, if Kansas wants to give everybody a 17 year sentence for this offense, they are free to do so.

[cherrycapital]

I have no problem with having unelected people in black robes legislate as long as they are protecting individual freedom from the state. Democracy is a means, not an end. When democracy is inconsistent with individual freedom, it is democracy that must yield. The whole point of having a Bill of Rights was to make certain things vote-proof. As Justice Robert Jackson said:

"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." (West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943))

When you study the founding fathers--everyone up to about Andrew Jackson--it is striking how little they had to say about democracy. Some of them even used it as an epithet. They knew that unlimited majority rule is as bad as any other sort of tyranny--worse, in fact, because it is harder to fight.

[aristeides]

The LAST HOPE for defeating homosexual marriage lies in a Constitutional amendment that explicitly defines marriage as the union of one man and one woman. The Alliance for Marriage, headed up by Matt Daniels, is leading the way in calling for the Federal Marriage Amendment to do just that.

And such an amendment would do more than end the prospect of homosexual marriage. It would represent the repudiation of the so-called thinking in the Lawrence decision and might persuade the Supreme Court to cabin the implications of Lawrence to what that decision was ostensibly about, striking down sodomy laws. Limon yesterday showed that the Supreme Court presently has no such intention. Quite the contrary.

[tdadams]

Leaving out some details aren't you?

[bvw]

Bingo! You got it! Better than I did!

[Van Jenerette]

You can have all the Judeo-Christian culture you want in your own homes and churches. But the government is not your private goon squad for the enforcement of Christian morals..

I wonder if we 'cleaned house' of ALL government laws, statutes, including the U.S. Constitution of anything based on Judeo-Christian morals and values, what rights would we the people have left?