The Supreme Court struck down a Texas sodomy law today. I'm glad to see the law gone, but I'm sorry about the decision anyway. Democratic freedoms are still being regularly eroded by the Supreme Court, and this is just another example of it.
In the 1980s, the Supreme Court declared that states have a right to have such laws. That decision was correct, in my view. The Supreme Court is not supposed to be in the business of deciding whether it "likes" or "agrees with" a law. The Justices are not supposed to decide that their commute is too long and rule speed limits unConstitutional. There are all kinds of laws I don't like, but I'd be horrified if the Supreme Court simply started throwing them out on my behalf.
As James Taranto's "Best of the Web" notes, in 1986, when the Supreme Court ruled that such laws were not unConstitutional, 24 states had them. Today, only 13 do. In other words, we were already on track on dealing with this issue via democratic means. When it comes to contentious social issues, it strikes me as particularly sad that we increasingly expect the courts to "do what's right for us," rather than go about the messy work of the legislative process.
Ah well. A bad law's gone, as are several like it. I just want to add my voice to those who note that it's sad when we celebrate democracy being trampled once again by the courts.
Alas, gone is the democratic freedom to imprison others for conduct that's none of your business and doesn't affect you. I hate to see freedoms like that trampled on. The next thing you know, nobody's going to be able to imprison ANYONE on a whim -- and isn't imprisoning people on whims what democracy is all about?
Silly me, I understood that the framers of the constitution set up a representative government (Republic) with three branches of government. I forget the names, but I believe they are the legislative, executive and the judicial branch. I'm not sure about that though. Those judges on the Supreme court are professionals; they may know a thing or two about the law.
When we start living in a pure democracy where individual states can trample on the rights of its citizens, let me know....(nice to know information).
Simply loving the Supremes.
Tim the Soldier
Ah yes, we should always celebrate when we agree with the effect of a Supreme Court ruling, without ever questioning the methods by which they did it. Of course, makes perfect sense to me, that's what democracy's all about! Worrying that the Supremes are losing respect for the democratic process--what horrible fool would ever even think that for a minute?
Some people are thick just because they're thick, and some are thick on purpose, methinks.
IMHO, it should not have been a law in the first place.
Pure democracy is all about the tyranny of the majority and picking your neighbors' pockets. That's why we never had one. It's no panacea in and of itself.
What a bunch of sarcastic responses you got Dean... why do people talk like that? There are really interesting values in conflict in these cases, and in the judicial vs. legislative question. The pedantic sarcasm ignores all the complexities. Honest and intelligent people can disagree on these things!
While I understand your point here, Dean, I have to say that there are times when the rights of the individual need to be protected from the Democratic process.. Remember, lynch mobs in the south were Democracy in action, in a lot of ways. Of the Supremes see that individual rights are trampled by the majority in a state, it seems appropriate that they would stop the practice. There are plenty of legitimate ways for states' rights to be enforced, but violating the rights of an individual, based on Democracy or not, is not on of them.
One of the reasons we give up some of our individual freedoms to the law is that we know we will have a voice in how those laws are enacted. We also know that if a law becomes truly repressive, we have a system whereby we can protest it, and act to have it changed.
Once again, I note that sodomy laws were being done away with via the democratic process. Is that not preferable than having 9 autocrats simply decide for us that we shouldn't have had them in the first place?
This isn't even a states' rights issue for me. Well, no, I guess it is something of a states' rights issue, although that wasn't where I was going with this. I just generally think that the Supremes have become somewhat arrogant in their lack of respect for democracy, and their general willingness to slap down laws that they don't approve of morally.
I'll give you an example: I think our anti-marijuana laws are attrocious, especially in medical cases. I think they are cruel, hurtful, harmful, and serve no useful social purpose. (Yes, I really do think that.) But are they unConstitutional? No, I would have to agree that they are not.
"Slippery slope" is a logical fallacy, granted. There are very few real "slippery slopes" in law. However, let's take this to logical extremes, for the sake of the mental exercise: the Supreme Court doesn't like the result of a slander suit, and so declares that the very concept of "slander" violates the first amendment. Or, on the flip side: the Supreme Court decides, based on the 9th amendment, that the people have an innate "right to be free of the odious presence of sexual deviants."
Yes, yes, that's not going to happen. But these discussions are worth having, don't you think?
Dean,
Be sure to read Justice Thomas's very short concurring opinion. He makes essentially the same point that you do - it was an extremely silly law, but contrary to popular opinion, there is no such thing as "unconstitutionally silly."
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. The fact that he separated the races shows that he did not intend for the races to mix."
That was a judge in 1959, upholding the Legislature's democratically enacted miscegnation laws. The Supreme overruled it in 1967. What a terrible blow to democracy -- allowing people who love each other to marry.
I'm still having a wee bit of trouble determinng how YOUR rights were "trampled" by the rejection of the sodomy laws -- do any of you know what "trampled" means? The person who is thrown in jail is generally the one having his rights trampled.
Dean, your point exactly corresponds with the discent by one of the justices (I forget which one, Renquist maybe?) saying if he was a legislator he would vote to rescind the law, but that he saw no constitutional prohibition against what the law. I see his and your point, but the law wasn't struck down because the law was disliked or because the group is popular. It was struck down because absent a compeling state interest in preventing homosexual sex, the law amounted to persecution of a minority; it is the Court's job to protect the rights of minorities against the majority.
Yes, the laws were going away, and the minority is a fairly popular cause. But popularity does not remove it's right to protection, if the laws should go there's no reason to wait, and the mind of the majority can change quickly. Besides, saying "if you want to prosecute a group; you need to be able to show a good reason for doing so" is never a bad idea.
Dean,
The Supreme Court has no army. It cannot enforce its decision. It seems to me that a foundation of our democratic republic is the three branches of government, separation of powers and our voluntary respect for each of them.
Kennedy's opening line "Liberty protects the person from unwarranted governmental intrusions into a dwelling or other private places" rings true to me and it seems to me that this case is well in line with Griswold and Roe.
The fact that we have gone from 22 states down to 13 states doesn't seem a good enough argument. We could wait 300 years for that last state to change its law or it could happen in 30 seconds. It's still an unwarranted governmental intrusion.
[I expect xrlq will argue that Griswold was a step in the wrong direction and they may be true, but I think constitutional law does not allow us to go backwards.]
Why would you say that privacy is not constitutionally protected? Here is the relevant constitutional passage.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
If the right to be left alone in the privacy of your home when you are doing nothing that will harm anyone else isn’t a right that should get the protection of the 9th, why not just cut the thing out and be done with it?
The decision does indeed follow from Griswold and Roe, but the line of thought still has just as much basis in the Constitution as the Supreme Court ruling abortion past the fifth month illegal because scientific advances in ultrasound have increased fetal viability and shown thought processes and the abililty to feel pain so that fetuses qualify as persons, and thus possess various rights under the Constitution, not least of which would be the 14th Amendment right to life.
It is in general unhealthy when the Constitution changes below our feet without the normal process of amending it.
"The Raving Atheist" comments on miscengenation laws are somewhat relevant. In the 15 years prior to the Loving v. Virginia case, 14 of the 30 states that had prohibitions against interracial marriage lifted them. In that, there is a similarity. Those laws were indeed repugnant but again one can have question about the means of repeal. (In the case of Loving, the Supreme Court relied on precedent in Brown and other cases, together with the indication that the 14th Amendment was clearly intended to promote racial equality.)
Dear Athiest: perhaps if you moved your reading further back in time, (say to The Federalist Letters) you may begin to understand why this decision is a significant erosion of the separation of powers, not to mention yet one more nail in the coffin of Federal Republic structure.
I've seen several comments here about democracy, pure democracy, and so on. Obviously some folks are confused. The United States are a republic.
And, y'all can celebrate a bad precedent in a good cause all you like, but sooner or later the court will use this power to start striking down laws that further erode our liberties.
For those who aren't aware of it: the Federal government is supreme, but only within a narrowly defined sphere. Outside of that sphere, the states are (or should be) supreme.
But these days folks are used to Washington running everything. And, after all, the ends to justify the means, no?
Dean, I can guarantee that you'll be labeled a reactionary for this one, for the same reason that some thinkers have been called that for saying the same thing about the way the Federal government enforced civil rights legislation in the South 40 years ago.
I am banning "Raving Atheist" from this site. I've asked him politely to stop his vicious anti-religious hate-rhetoric, and he hasn't stopped, so he's banned as of now.
To answer his loathesomely-phrased question: my right to construct laws I believe in is threatened whenever the court decides for me that it doesn't agree with my reasoning simply because the court finds it immoral. Which is all that the Raving Atheist pinhead is arguing: he finds the law immoral, therefore, he agrees that it should be struck down in an antidemocratic fashion.
Rick: You evaded my question. By invoking the 9th amendment, you have left open the possibility that the courts will one day decide that we, the people, have a "right to be free of the odious presence of sexual deviants."
If you are not willing to base Constitutional decisions based on respect for the democratic process and the limitation of judicial power, then what's to stop judges from basically making themselves Kings?
Trouble is everyone (well I dont but...) has one issue that they think the Feds should meddle in... Put them all together and you have a very meddlesome Supreme Court.
I am all for state's rights. If one state wants to be intrusive then fine. If you don't like it...simple...leave! Using the Supreme Court to overturn something you can't get overturned locally is pathetic in my opinion. A sad day for state's rights, despite the fact that law was pretty lame.
Dean,
I'm not sure your characterization of the decision is fair. The SCOTUS didn't strike down Bowers v. Hardwick just because they don't like it; they argued that it was an incorrect decision based and that the law violates fundamental rights.
The right to privacy that has been recognized in case law as being part of the Constitution of the US for a while now is supported by Griswold, Eisenstadt, Casey, and Roe v. Wade, among others. The court in effect ruled that the petitioners' rights to liberty and privacy guaranteed by the due process clause of the 14th amendment were violated. The decision was not based on the 9th amendment.
If you reject this ruling on the basis that legislatures should decide this question, then where do you draw the line? Is it not the role of the Supreme Court to interpret the Constitution of the US and strike down laws that are inconsistent with it? The Supreme Court argues here that sodomy laws are not constitutional. You're saying they are constitutional?
My mistake. I left out a phrase in editing.
"they argued that it was an incorrect decision based on an incorrect interpretation of history and SCOTUS precedent and that the law violates fundamental rights."
I'd just like to point out that in this case and the Loving v. Virginia one, the Supremes appear to have moved to validate the moving tide of change in the States laws and opinion of what was acceptable in our culture.
I'm not talking about any Constitutional issues per se here, just that in both cases the number of States that banned the behaviour in question dropped below half, and the Supremes seemed to have then recognized a change and applied it nationwide.
I gotta agree with all the above folks who posit that the primary function of the Supreme Court is to ban laws that are unconstitutional. Which the Texas anti-sodomy law was. And which they did. It's a great day to be a homosexual American.
Period.
D
Is it not ironic that one of the Justices who voted to uphold the law wrote so eloquently against the law? Even if I were a fairly strict constructionist, I am not sure I would have the heart to rule to uphold the law. It is SO WRONG!
I suggest reading the recent DavidWarren essay regarding the recent legalization of gay marriages process in Canada.
Aren't these the same nine justices who disregarded democratic principles and appointed George W. as president? I'm shocked that you are shocked.
Tom,
Cheap shot and unmerited. Florida's Supremes violated the Constitution TWICE and the recount method violated the 14th amendment -- without that, there would have been no reason for the Court to intervene.
As for the "democratic" merits of today's decision, I'm unconcerned. The 14th amendment and SCOTUS did the country a big favor today. Democracy is three wolves and a sheep deciding who's on the dinner menu which is why I'm glad we don't live in a democracy.
At any rate, homosexuals were taken off the dinner menu today.
Dean Esmay wrote:
"I'll give you an example: I think our anti-marijuana laws are attrocious, especially in medical
cases. I think they are cruel, hurtful, harmful, and serve no useful social purpose. (Yes, I
really do think that.) But are they unConstitutional? No, I would have to agree that they are
not."
Then you might ask why even the proponents of alcohol prohibition found it necessary to amend the constitution to permit the prohibition.
Laurence seems to follow logically from Griswold. One can disagree that enumerated rights have "penumbras", especially when you don't like the rights engendered by them. But if you accept Griswold, Laurence follows very reasonably.
And oh yes, on the whole, I think Raving Atheist's comments in this discussion at least were very legitimate. Mr. Mercer made much the same points. But it's your blog, so you can ban anybody you care to.
Frankly, I find Scalia's remarks more offensive than RA's. Scalia wrote something like that the majority had joined "the homosexual agenda" in the "culture war". Apparently Scalia thinks laws are the legitimate weapons in a "culture war". At least he admitted that he likes culture wars with laws as weapons. Wonder how he'd rule if some state passed a law outlawing heterosexual sex of any kind. Would he say it's a constitutional thing to do in a "culture war"? I don't think so.
Please explain the compelling state interest that would give any state the right to stop me from having sex with my partner.
This decision upholds personal privacy and individual liberty, two of the things that the Constitution was most certainly designed to do. The point of this ruling is that mere moral disapproval is insufficient grounds to legally penalize a class of people or behaviors. I have a hard time disagreeing with that, and look forward to other ways in which this ruling might do away with laws that were written out of distaste, rather than out of Constitutional duty.
"Then you might ask why even the proponents of alcohol prohibition found it necessary to amend the constitution to permit the prohibition."
Because the proponents of the amendment were attempting to remove the issue from the jurisdiction of the states. The dry's wanted a nation wide ban on alchohol and some states wouldn't go for it. Since nothing in the constitution gives the federal government the authority to issue the ban, they had to pass an amendment to get what they wanted.
fub: you are correct on the point about marijuana, alcohol, and the Constitution.
Alas, after all that it's all downhill. It's very simple: the Court can only strike down laws that violate the Constitution. I think we can all agree on that.
Now where is the word "privacy", or the phrase "right to privacy" written in the Constitution? This is only a question due to bad judicial decisions. Here the Court has followed through bad precedents with bad reasoning.
The question of the validity of the law itself has nothing to do with the point at hand; something a very large number of people have a very hard time understanding.
The United States Supreme Court has no jurisdiction over laws like this. Period. This is a Bad Decision. The Court has made bad decisions before, and will make them again in the future. Sometimes the precedents set go on for decades.
If it makes you feel any better, I think the Texas law is asinine, and if some of the folks who have been cracking on Dean knew him better they would know he feels the same way. But they're going to go after him, because he has taken an unpopular position.
It's a really annoying habit he has. :)
Oh, Mr. Kusch: any state has a recognizable right to regulate certain forms of sexual behavior, including laws on adultery, bigamy, prostitution, and child molestation. The theory is that the sodomy law falls under this umbrella.
As I said above, I think it's an asinine law, but it might stand up to state challenge if (as I think the Texas law does) it specfically prohibits male/male sodomy, not all sodomy.
Individual liberty is not license. Please re-read some of the Federalist Papers. This was one of the central arguments facing the Builders.
And I'd really like to see the "privacy" clause in the Constitution. I really would. :)
And yes, I know that the Constitution specifically states that rights are not limited to those mentioned therein.
Where do rights come from? A rights-of-the-month club?
It is generally accepted there are two approaches to the concept of rights: God-given rights as mentioned in the Declaration of Independance, or immemorial tradition as exemplified by English Common Law.
I'm pretty darn sure there isn't a God-given right to sodomy. :)) I'd love to see what verse THAT is in the Bible.
I'm also pretty sure that homosexual sodomy (or even heterosexual sodomy, come to think of it) is not a long-standing tradition or recognized right. In fact the record shows the opposite.
Now, as Dean pointed out, the anti-sodomy laws have been disappearing on their own (which is another reason for the Court not to have acted, but I'm a crusty strict constructionist myself) for some time. Perhaps, in 30 or 40 years from now, you could begin to build an argument that acceptance for homosexual practices had gradually built a right for such by custom, and tradition, in society.
To clarify on what is and is not a right: there are some who would argue, "If sodomy cannot be prohibited by the state, what of pedophilia, rape, prostitution, even theft or murder?"
The question is one of liberties.
If I have sex with another man in private, I am exercising a liberty. That act deprives no other person of their liberties, as long as the sex is consensual.
If I murder someone, I violate their liberties by depriving them of their life. If I steal from someone, I violate their liberties by violating their property rights. If I rape someone, I violate their liberties by the use of physical and sexual coersion.
There are rational bases for certain crimes, not just moral. By and large, the larger body of objection to homosexuality and sodomy (a term I would like to see used less, as its Biblical origin is too heavily loaded) is based on morality and/or religion: people simply feel it's wrong. Most of the numbers out there trying to prove the inherent harm in homosexuality seem disingenuous: they either cite problems that heterosexuality also causes (i.e., disease, unhappiness), or they cite the outcomes of discrimination and bigotry as arguments against homosexuality and not against discrimination and bigotry (i.e., we are alienated, lonely, more likely to be physically assaulted, etc.).
States rights are important, but no state has the right to infringe on personal liberty for wholly subjective reasons. You can not take away a State's right that the State never had to begin with.
This ruling does certainly break from tradition in some important ways (though it does have ample legal support -- just read the majority decision on the Supreme Court website like I did), in that it recognizes -- possibly for the first time -- the right of adult individuals to engage in intimate private consensual behavior without governmental interference based on "mainstream values" or any other such pseudo-rational bugaboo by which societies attempt to regulate unpopular behavior. It is a strong statement in support of full citizenship of gay and lesbian Americans, and furthermore (much to the dismay of anti-gay marriage activists) it lays a foundation for the eventual legal recognition of same-sex marriages (to be sharply defined from religious marriage, which is an issue being decided denomination by denomination in this country).
Even if all the sodomy laws were repealed, that doesn't mean they couldn't come back. It sometimes requires judicial action -- as it did with women voters and racial segregation -- to clearly define what areas of civic and private life can and can not be regulated by the government.
The only "democratic freedoms" that have been taken away by this ruling are freedoms which never existed.
Casey:
If there is no right to privacy, then how much regulation of your [apparently non-] private life are you willing to have regulated. The Bible is not the Constitution, unless maybe you choose to start reading at the 2nd Amendment instead of the first.
If there is no explicit clause in the Constitution guaranteeing a reasonable expectation of privacy and the liberty to conduct one's personal affairs without undue (and subjective) governmental interference, then maybe it's time there was one. The solution here could very well be a Constitutional amendment.
I can not and will not accept the notion that the State has the right to regulate what legally-consenting adults I have sex with. While there may be a legal provision for the State to do so (given an apparent hole in the Constitution), there is no moral provision for it, if indeed we are a Democracy.
Rights are inalienable; they can not be voted away. The Supreme Court decision recognized that the concepts of "life, liberty and the pursuit of happiness" includes a private life protected from governmental intrusion.
Those who don't recognize that right . . . well, let them walk in my shoes and continue to respect sodomy laws.
Carl, I agree that nothing in the Constitution gave the Federal Govt. the right to ban alcohol, and hence the prohibitionists needed an Amendment.
Alcohol is a manufactured substance, and if they needed an Amendment to ban that, why do they not need an Amendment to ban a plant?
I'd argue on those grounds that classifying things as Schedule I drugs is unConstitutional. Regulate them in interstate commerce the Feds may do, but not ban something outright.
Many interesting and thoughtful comments here, but I find I agree with Dean- Bad decision, good outcome.
Could we drag the "free market" into this discussion?
Could the states that have removed their anti-sodomy laws have felt market pressure, as people that felt those laws were wrong moved to other states, or avoided moving into them?
Would the states that kept the laws continued to feel the pressure to change, and eventually repealed them on their own? It seems they were headed in this direction.
I have a saying that I use frequently:
"I'd rather be lucky than good"
This works, until your luck runs out. At least if you are good, you will never be hurt too badly, but when your luck runs out, you can lose everything.
Our nation was lucky with the results of this decision, but the decision was not based on good law. The next result based on bad law might not produce such a great result.
How long will your luck last? The gambler's answer is to keep betting on a hot streak until you lose-but what happens if you lose it all?
I would rather have our SCOTUS be good, than trust in luck to protect us from bad decisions.
It's just as easy to argue that the luck part comes in when we merely "hope" that whatever state we live in will recognize and uphold our human rights. For the millions of Americans who could be criminalized by sodomy laws (and for those who have), human rights aren't something to be left to hope. The fact that we've managed, culturally, to bring some over to our side does not mean there is no need for our judiciary to affirm our human rights.
The reason this was a sloppy legal decision is that the law is sloppy on the issue of sexual behavior. While in the short-term this ruling is a ragged band-aid, it opens up future opportunities for further legal clarification on the definition of private consensual sex and how that fits into the larger context.
Had the courts decision found in favor of Texas, I would have seriously begun to consider exerting your so-called "market forces" in the form of looking for another country. Liberty is not up for a vote.
John said "If there is no explicit clause in the Constitution guaranteeing a reasonable expectation of privacy and the liberty to conduct one's personal affairs without undue (and subjective) governmental interference, then maybe it's time there was one. The solution here could very well be a Constitutional amendment."
It seems to me that is covered in the first part of the 4th Ammendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"
Being secure in their persons, houses, etc. sure sounds like privacy to me.
Sigh...
All I see is "liberty is what I think it is," or people who can't read or understand our legal and cultural heritage.
Go ahead, y'all. The ends justify the means, and we can always erase the Constitution with a pencil and draw new rights in with a pencil later.
Paul Winsor: you have hit upon one of the main motivations for states rights under a federal system of government. Congratulations. This will get you precisely nowhere with the "right is what I think it is" brigade. Good luck. :)
Marsha: you forgot a word: unreasonable. You also forget that this refers to due process, not how each state determines its own laws, or that each state is the supreme authority outside those areas defined by the Constitution.
Mr. Kusch: considering that you insist on calling the United States a democracy, when it is a republic, I have trouble taking the rest of your solipsistic arguments seriously. You are arguing, basically, that "legal is what I think is right, just, or moral," without considering the other millions that you don't mention that don't agree with your point of view. But that's ok, because your point of view is perfectly moral, just, and correct, and everyone else is wrong.
You are living proof of why representative governments should have limited powers: to limit the damage that well-meaning, but close-minded people can do.
I'm outa here. This thread has turned into an echo chamber for the historically unaware.
I am my millions of gay and lesbian brothers and sisters are also part of this nation's history and cultural legacy. Your argument strikes me as essentially saying, "Our visceral dislike of your sexual behavior is objectively correct, though you cannot see it, being mired in sodomy as you are, whereas your unwillingness to surrender your liberties to the whims of the majority is moral relativism."
Our fundamental disagreement is that you believe that your beliefs stand upon a solid foundation, whereas I belief that my beliefs stand on their own merit, and not the hearsay of a supposed majority who, despite their good intentions, seek to impinge on my ability to live my life.
If Casey can give me a single objective demonstrable reason why the State has a compelling interest in criminalizing my primary relationship, I invite him to do so. My arguments stand upon the concept of individual rights and the Constitution's role in protecting them. What do his arguments stand upon?
Casey writes:
Actually, the amendment in question reserves powers not defined in the Constitution to either the States, or to the people. States rights do not imply that each State is a mini-dictatorship, doing exactly as it pleases with and to its citizens outside of Federal authority. There are some powers that no state should hold, which in my view includes regulation of adult consensual sex (4th Amendment et al.).
Imagine sex like drinking: an age of consent can be defined, and certain behaviors that are fundamentally dangerous / harmful (i.e., drinking and driving) can be regulated, but prohibition failed.
Casey's base belief must clearly be that homosexuality is wrong -- otherwise why lobby so hard for the State's "right" to regulate it?
If you don't like homosexuality, don't be gay. The rest of us are qualified to manage our own lives, thank you.
Casey's base belief must clearly be that homosexuality is wrong -- otherwise why lobby so hard for the State's "right" to regulate it?
Oh, that's a very nice bit of slander there, John. And I can testify personally that it is slander. Are you in the habit of doing this sort of thing? Slandering people for simply disagreeing with you, I mean. One has to wonder. Casey might even be gay. Have you even bothered to ask yourself that question? I know gay people who agree with his position, so why would you be so prejudiced and bigoted about it. Could it be that you have a hidden agenda of your own? Oh yes, that must be it, you want the Supreme Court to be our Hitler-style dictators, and that's why you applaud their subverting democracy, right?
Please try to get over yourself and acknowledge that decent people can disagree with you without being evil, mmmKay?
The hand said: "The pedantic sarcasm ignores all the complexities."
I love that line. Classic.
Tim the Soldier
As the Canadian gay-anti-gay-marriage group HOPE (Homosexuals Opposed to Pride Extremism) shows, being gay doesn't presume one is pro-gay right, no more than being straight presumes one is anti-gay rights. But I grant your point, to a point.
I'm not arguing that Casey is coming from an "evil" standpoint -- those are your words, not mine. I'm implying that his insistence that consensual adult sexual behavior can be lumped in with coercive behaviors (pedophilia, bestiality, rape, etc.) merely because of the traditional opinion that such behaviors are "immoral" lacks Constitutional muster precisely because it deals with morality and not individual rights.
I concede the point that there is a judicial practice of basing rights on the concept of "God-given rights" or tradition; yet this is a ridiculous approach, given the fact that tradition is precisely what denies gay and lesbian Americans the right to form full, meaningful relationships, not to mention the fact that Bibical interpretations vary on the subject of homosexuality and regardless religion may have at one point been the basis for some of our Constitution (but not all: I'm sure King David would have had a thing or two to say about due process), it was merely the basis, and our government and society have grown far beyond that.
The right to sexual intimacy with the consenting adult of your choice is hardly a frivolous choice, like the right to fresh mangoes or the right to never hear anything offensive (something that many on the conservative and liberal ends of the spectrum seem to believe in). Sex is a primary expression of intimacy, whether in the short term or the long term, an integral part of "life, liberty and the pursuit of happiness", a fundamental part of human nature. The vigor with which sex is regulated (either justly or unjustly) underscores its importance.
If sex isn't a right, it ought to be. It's hardly a right-of-the-month-club concept; gay and lesbian Americans, unmarried Americans, mixed-race couples, just to name a few, have been fighting for this right for decades.
I'm willing to admit that this country has a cultural heritage and Judaeo-Christian roots. Yet opponents of this Supreme Court decision must recognize that for gay and lesbian Americans, culture and roots have very different meanings, meanings worthy of a place in society unregulated by a government that is clearly being used as a coercive arm to enforce the popular community mores of the moment. This is an inappropriate function for government, as many straight couples using contraception would attest.
I'm not pro-abortion. Yet Roe v. Wade set a precedent for the sovereignty of the body which many Americans hold as core values. I do not propose that those values be encoded into law; I merely propose that no law specifically prohibit the expression of those values according to something as capricious as "community standards".
Maybe the question here is, "Who owns culture?" It's like asking "Who owns the truth?" In a truly liberal society, the answer would be, "No one."
It's a shame Casey abandoned this thread because his narrow reading of the constitution -- that it doesn't mention privacy -- is easily defeated.
Rights that are protected also have logical corrollaries. For instance, free speech not only means that I can say what I want but it has a logical corrollary as well: other people don't have to listen or agree. They can ostarcize me.
And another: others can't be forced to support my speech. Just because I have a right to speek doesn't mean I'm entitled to a microphone.
As for privacy, the Constitution does recognize private property explicitly. That property represents a zone of privacy into which the government cannot step. This is supported by both the 4th and 5th amendments and is applied to the states via the 14th amendment. There is a right to privacy, it only requires the ability to reason to recognize it.
"I agree that nothing in the Constitution gave the Federal Govt. the right to ban alcohol, and hence the prohibitionists needed an Amendment.
Alcohol is a manufactured substance, and if they needed an Amendment to ban that, why do they not need an Amendment to ban a plant?"
Weeell, I didn't actually mean that the fed couldn't ban alcohol. The federal government certainly has the power to ban alcohol on federal property and federal territories, i.e. any place directly under the jurisdiction of congress. What it was not empowered to do was to prohibit demon rum in the states. Congress could enforce prohibition in Washington D.C., but not in Texas, Florida, New York, or any of the other (at the time) 48 states. To do that a constitutional amendment was required.
Marijuana is not just prohibited by federal law, but also by the laws of the various states. Very few people are charged under federal statutes relating to marijuana, and those that are usually involved in transporting it across state lines (which makes it a federal case) or smuggling it in from out of the country (which also makes it a federal case). Sometimes the federal charges are the result of state law enforcement asking the federal government to step in and aid enforcement. All of this is constitutional.
Now suppose for a moment that a state were to legalize the herb. At that point federal prosecution of people involved in growing selling or using marijuana in that state would become (IMHO) unconstitutional. It would be an infringement on the sovereignty of the state. However, federal prosecution of people bringing marijuana into that state from out of the country, or from across state lines, or against people exporting it to other states would still be legal.
Of course the court's ruling in the sodomy case is rather the reverse of prohibition. It is the equivalent of the federal government ordering the dry states to lift their prohibitions on alcohol and join the wets.
Dean,
I have not dodged the question, I have simply moved the frame of reference. Is the 9th valid or is it not? You assume that I am not willing to base Constitutional decisions based on respect for the democratic process and the limitation of judicial power. I disagree; I would suggest that the ideas are completely compatible. I would suggest that respect for the 9th is essential for our republican for of democracy because it protects against a very pernicious form of tyranny, the tyranny of the letter of the law. It is the recognition that no matter how carefully you attempt to craft law, there is always those how will try to use the exact wording or a literal interpretation to subvert the spirit of the law. By denying the 9th amendment, not only are you indulging in selective interpretation of the constitution, but also you are denying that there are individual rights that need to exist to protect individuals from the tyranny of the majority that the writers of the constitution failed, for whatever reason, to enumerate.
Can you list an unremunerated right? Either the 9th is part of the constitution and it has meaning or it isn't. I submit that all personal liberties are rights under the constitution and the government, be it state or federal, has to demonstrate that my asserted right, in this case the right to behave as I please in the privacy of my home, either:
1. Denies other of their constitutional rights.
2. Breaks laws that re determined to be constitutional (murder, rape, counterfeiting et all)
3. Have an extremely compelling state interest. (Having a biological weapons lab in the basement)
Now please I realize this flies in the face of conventional jurisprudence but the fact is that to ignore the 9th means that you are picking an choosing among the amendments. It is exactly these kinds of cases that the framers had in mind when they wrote the 9th. Not homosexuality per se, but things like privacy and freedom of association (another often quoted “right” that has no constitution reference. The freedom to assemble is enumerated not the freedom to associate.)
By your reckoning the ability of governments to regulate membership in private clubs is completely constitutional because the constitution is silent on the issue. I would consider it an unenumerated right. And I also have, what I think is a fairly well developed outline, for determining what an unenumerated right is, but it would take too long to discuss here.
What you’re arguing is that we ignore the 9th because it’s too subjective. Well all the amendments are subjective to a degree. The entire concept of compelling state interest is completely extra constitutional. Let’s face it, the federal government felt it necessary to pass a constitutional amendment to ban the sale of alcohol but feels no such compunction to do so to ban pot. Why? The only answer it’s the subjective opinion that pot is so much more dangerous then alcohol yet the rational to pass the amendment was precisely because many felt that alcohol was as bad for society as some feel pot is today. Subjective? You betcha.
I understand your point completely, you’re uncomfortable with anything that cannot be qualified objectively, this is a common thread in many of your arguments and I can certainly respect that. I’m more of an existentialist; I see the search for objective truth as a folly and that we either embrace subjectivity and work within its inherent weaknesses or we continually argue over what is objective.
The whole of this argument has me thinking about fundamental approaches to our Constitution and government in general.
On the one hand, some strict constructionists seem to believe that individuals only have those liberties that the government (Federal or State, according to their order of precedence) grants them. Ergo, since homosexuality has not been explicitly defined in the Constitution as a right, it is not a right, and the government has the right to regulate it. The majority ruling in Lawrence v. Texas was, then, in error.
On the other hand, there is the idea that individuals have all liberties -- in other words, the totality of possible liberties in all possible contexts -- except those prohibited by the government, and that in order to curtail a liberty, a compelling state interest must be proved. Ergo, homosexuality is a right unless the state can prove it is not; and the Lawrence v. Texas ruling determined that such proof is not forthcoming.
I studied a lot of Objectivism when I was supposed to be going to college; and in general, the objectivist stance toward legislation is that a law should only be passed if it protects individual liberty. Because it is unclear from a legal standpoint how homosexuality infringes upon any individual liberties (unless you count as an individual liberty the right to not have one's moral sensibilities offended, which would be laughable even to Justice Scalia), no such law is necessary.
That's where I'm coming from.
Once upon a time there was a bunch of colonies, and for a variety of reasons, they decided to unite and rebel against their government.
Those colonies had many different cultures, some very religious, some anti-religious. Fourteen years after they freed themselves from the King, their representatives got together and wrote a new Constitution. One purpose of this Constitution was to preserve the rights of the various States to make their own laws, to do things differently from one another.
It was presumed by these representatives, the Framers of the Constitution, that if a citizen desired to live under a religious government, with an established State Religion (which several of the colonies had at that time) that the citizen would move to such a state. Likewise, it was presumed that if a citizen found the imposition of religion on his life oppressive, that he would move to a state that did not impose religion.
The Constitution is SUPPOSED to keep the Federal Government from interfering with the rights of the individual States to make laws within thier own borders as they see fit.
The Constituion, including the original BIll of Rights, as written by the Framers, does exactly that.
That was the Constitution of a Republic. We do not live in a Republic, and we do not live under that Constitution. The Republic died in the Civil War, and the Federal Government became supreme. The Constitution was modified by amendment in 1868.
Some people (Dean and myself among them) like to think that we still live in a Republic, and that the people of a state have the right to make laws to suit themselves without regard to what people in other states may think. (How else would one explain California?)
That's not actually true, and the Supreme Court has just underlined and emphasized that fact with two WRONG decisions. Those decisions were not wrong because of the effects, but because they defy the spirit and intent of the original Constitution.
But that's the government we live under now, folks.
"Those decisions were not wrong because of the effects, but because they defy the spirit and intent of the original Constitution."
I doubt that anyone posting on this subject is an EXPERT on the "SPIRIT" and intent of the Constitution unless of course you were born in the 18th century and wear a funny white wig. Now, that being said, some intelligent arguments have been made on both sides, I believe that this is one (of only a few) where the ends justifies the means. AND this is not an issue that fits into the slippery slope where the Supreme Court legislates based on a supposed social agenda. Even though I think legalizing same-sex marriages is inevitable and part of the social progress of our nation, this ruling will not significantly impact the other. Just my thoughts.
Tim the Soldier
carl, I agree with all that about Federal pot laws in principal, but that's not how it's gone lately. See the Ed Rosenthal case recently: he was growing pot legally (under CA and City law) FOR the city, and the Feds busted him.
They didn't even let his attorney tell the jury about the whole situation, and after conviction when the jury found out, they were horrified.
The media circus pressured the judge into giving him one day, time served.
THAT is what some of us are so uppity about with the Feds and states rights, stuff that they just should NOT have their fingers in that is legal in a state. They charged Rosenthal to 'make a point': that the States are NOT currently nearly as Sovereign as they were, and that the Feds will stick their grubby fingers in where they see fit.
Gary: just read your last post in this thread, and I agree 100%. I'd like for the Republic to still exist, but yes, Lincoln and the Civil War killed it.
Anyone who thinks Bush and Ashcroft have been heavy handed (not implying anyone in this thread has said such in this thread!) needs to go back and read the history of the Civil War closer: Lincoln imposed a de facto military despotism for much of it.
We now have much of the trappings of Imperialism, such as a large beauracracy, increasing legalism, recently announced regimental enlistment of our already professional army, increasing use of non-citizen soldiers.
Not that all of that is necessarily BAD, Empire itself is not per se an evil: who else would you even THINK about trusting to police this increasingly dangerous world? What other nation has such a self-critical, and self-correcting, tendency?
But we're going about the final stages of becoming a true Empire half assed and all willy nilly.
"As I said above, I think it's an asinine law, but it might stand up to state challenge if (as I think the Texas law does) it specfically prohibits male/male sodomy, not all sodomy."
Actually, I thought that made the state's case weaker; how does male-male sodomy differ from male-female sodomy, that there is a compelling interest in preventing the former, but not the later. It's not like it does anything different, and with the limitation it is plainly obvious that the only reason for the law is to prosecute a minority. That's fine if the minority is a danger to the state; but Texas couldn't prove that to the courts satisfaction.
"Where do rights come from? A rights-of-the-month club?
It is generally accepted there are two approaches to the concept of rights: God-given rights as mentioned in the Declaration of Independance, or immemorial tradition as exemplified by English Common Law."
Well if that's the standards you want to use:
'A man's house is his castle'
That's been English common law for long enough that I'd consider it 'immemorial tradition'. And *that* sounds a lot like a right to privacy to me. If you want to disagree fine, but think hard about what you're giving up first.
If that's what the case was about, it was a bad decision. Because the police were responding to an emergency call. Yes the call was faked, but the police had every reason to be where they were. Arguably they should have apologized and left to arrest the neighbor when they realized it was a faked report, but that's a matter for state courts.
If the case was about persecuting a minority, then it was a good decision, the court said the state has no interest in persecuting this minority, so in keeping with the tradition in this country that you cannot persecute a minority without a compelling interest this law needs to go. And I think that's what this case was about, precisely because the neighbor faked an emergency call to get the police there.
It may be you think the court was wrong, and the state has a compelling interest, and I'm sure some of you do think that. But I'm fairly sure Dean does not think that, he just thinks that we should have let that type of law die a natural death. But that does no good for the two people who would have been fined, and would have gotten a criminal record because of it. There are some things that could be left up to market preasure and time, but this is not one of them, and there is no reason to let Texas or any of the other states persecute a minority just because they don't happen to be popular enough yet.
"The Constitution is SUPPOSED to keep the Federal Government from interfering with the rights of the individual States to make laws within thier own borders as they see fit."
Yes, but only to the extent that those laws do not violate Constitutionally protected liberties. Period.
As to the question of whether sodomy and/or homosexual acts should be considered protected...that is a much better question, and I have to agree with Dean that it is dangerous ground when Justices are able to pull new rights out of thin air. But they haven't done that here. They have built on a foundation of 50+ years of jursiprudence that has increasingly clarified the right of 'privacy'. And while you might not like the whole train of thought that has lead them there, I personally believe that it does follow the spirit of the Constitution and the Declaration of Independence that implies that personal freedoms are paramount, and should only be infringed when absolutely necessary. And I certainly don't see the compelling state interest here.
I'm curious though...to those of you like Dean who don't like the decision because it's based on the tenuous 'privacy' argument, would you support an amendment that seeks to define 'privacy' as a constitutionally protected right?
There is no need to have an amendment to protect the right of privacy, or freedom of association, or freedom of expression or simply the right to be left alone. They are already protected under the 9th. Here lets roll the tape again.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The people retain all individual liberties, period. I don’t know how much more plainly you can say it. Either this is part of the constitution or its not. Yes or no, up or down, you can’t have it both ways. I’m against enumerating individual rights for the same reason many were against a bill of rights in the first place. They were worried that people would claim that something wasn’t a right unless it said so in the constitution and that is exactly what happened.
Well, Justices Thomas and Scalia have stated that the Constitution does not guarantee citizens their right to privacy. (And, of course, Rush Limbaugh, echoed that sentiment on his program this morning). I don't about you guys, but those statements are insane. They would alarm me save for the fact that Rush has no political or intellectual credibility and most of his devout followers are mindless dolts. I'd like to think that we do have a certain expectation of privacy. Now, if we're talking about building a nuke in our basement and expecting protective rights, we're crazy. I'm just saying if two grown men want to perform a 68+1 in their bedroom, the court should protect that right.
Tim the Soldier
I, too, long for the days of a Republic. Few of the People who use Jefferson as a "wall between Church and State" apologist are aware that as Governer of Virginia he instituted a state-wide fast day. He was totally consistant: No Federal 'Church' or regulation thereof, but states could do what they wanted as regards religion (just as an example).
Regarding Meezer's point: Contrary to what some might think from my open hostility to organized religion on another thread(s), I am all in favor of a much more strict constructivist reading of States Rights than has long been the case in practice, and I'm not in any way opposed to some States having a state church: Just so long as I can go somewhere that has ended our current Prohibitions on drugs; those other states can ban them, and abortion if they like too, so long as others can have them.
Micahel mentioned
"It may be you think the court was wrong, and the state has a compelling interest, and I'm sure some of you do think that. But I'm fairly sure Dean does not think that, he just thinks that we should have let that type of law die a natural death."
A natural death,
Kentucky repealed a ban on interracial classrooms in 1996.
South Carolina and Alabama OKed interracial marriages in 1998 and 2000 respectively.
Even then some of the votes were far from unanimous.
Not exactly timely.
Well, Justices Thomas and Scalia have stated that the Constitution does not guarantee citizens their right to privacy.
And here they are, supposedly great legal scholars, sitting on the Supreme Court. On suspects that they might be qualified to have an opinion, and that that opinion might not be nonsense.
In fact, the Constitution does NOT guarantee a right to privacy. The Court made that up to justify thier decision in Griswold, (and used it again in Roe). This country got along just fine without a right to privacy for more than 150 years, and the crap that is currently being done in the name of that right is plain stupid.
This, to me, has nothing to do with the current decision (which I agree with DESPITE the fact that I don't think the Court had a right to intervene).
David,
Far be it from me to claim that the various branches of the federal gov don't overreach their authority on occassion (far too often really). The problem becomes especially acute when all three branches more or less agree on a particular policy (not agree in the legal theoretical sense, but agree in the political/pragmatic sense). At that point you get congress enacting laws it has no authority to enact, the executive enforcing and bolstering those laws through executive orders (which are essentially rule by fiat), trial courts that refuse information to juries, and appellate courts that refuse to hear appeals.
After the percieved crisis and need for a particular policy has passed, one or all three of the branches might repudiate the methods of implementation or the policy itself, but that does very little for the people affected by the policy in the meantime. A prime example of this is the internment of Japanese Americans during WWII.
The current model of this is the drug war.
Unfortunately, since it is the federal government itself that gets to decide what is constitutional and what is not, until there is a massive change in the attitudes of the American people and the Representatives and Senators they elect (and let me take a moment to say that electing Senators is part of the problem...in the system as it was conceived Senators were not supposed to represent the people...they were representatives of the states and the state governments) there is very little that can be done.
All I was trying to point out in my last post was that even with a very strict construction of the Constitution, the federal government has lots of authority (just not quite as much as the old prohibitionists thought they needed).
Rick,
"There is no need to have an amendment to protect the right of privacy, or freedom of association, or freedom of expression or simply the right to be left alone. They are already protected under the 9th. Here lets roll the tape again.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
And there is a seperate and coequal branch of government that is designated as the representatives of the people, and it ain't the judiciary, it is the legislature. It is up to the representatives of the people to assert, defend, and provide direction to the judiciary regarding those rights. The courts have no business creating, finding, or infringing upon those rights without explicit legislative or constitutional authority.
Carl said, "The courts have no business creating, finding, or infringing upon those rights without explicit legislative or constitutional authority"
The courts don’t create these rights, they are already there they are simply unenumerated. They already exist, that was the whole point of the ninth amendment, without which the amendments of the bill of rights would never have bee ratified. I understand why your uncomfortable with that very plane fact, but to deny the ability of the courts to uphold rights not enumerated is to simply wave your hand and pretend the 9th doesn't exist. I understand that you all seem to whish the 9th didn't exist because it makes the idea of individual rights seem a bit subjective, but the entire constitution was written to make it wide open for interpretation for better or for worse. So unless you all want to repeal the 9th, I suggest we all get comfy with the idea. You cannot dismiss one amendment without making all the amendments optional.
The legislature cannot make a law that violates the protection of a right in the constitution nor can they assert a power by law that is counter to the constution. So the legislature dosen;t figure into this equation.
Hear hear! Rick is right, and just because we are more aware of inherant rights to (sexual) privacy now that we were 200+ years ago, doesn't mean that we shouldn't recognize them now.
As the level of awareness of things collectively rises, the 9th will expand our rights over time.
I see nothing wrong with this at all.
Before phones, you had no right to expect privacy while using them. Now you do.
(NOT to imply that all such increases will be due to technology, although of course many will).
I believe the heart of the majority opinion addresses this fairly well here:
Without offering a substantive view of the points at contention here, I would (I guess rather ungraciously) suggest that almost everything that has been said about the Supreme Court is 50 years or more out of date. The conventional meaning of "constitutionality" has been profoundly altered by the Court in all of its rights jurisprudence, flowing from the famous footnote 4 by Chief Justice Stone in Carolene Products (1938) and the definitive ruling in Brown (1954). These opinions in turn flow from the constitutional revolution signalled by the Court's post-1936 decisions reversing its position on New Deal legislation (and reached their ultimate expression in the "race gerrymandering" cases of the 1990s, eg. Shaw v. Reno). In the light of these and a hundred other landmark cases, the way, for example, that Casey Tompkins writes about the Court has very little relation to its arguments, and I think it would help for people to actually read the opinions and the dissents in Bowers v. Hardwick (1986), Romer v. Evans (1996) and Lawrence v. Texas (2003). As it happens I think Hardwick was a ludicrous opinion, one of the most egregiously nonsensical the Court has ever handed down. If that was what the Court's strict constructionists wanted to fight their battles against judicial invalidation of sodomy laws, they have only themselves to blame that they lost.
PS Following the debate on this blog re: Christianity and homosexuality, people might be interested to read this amicus brief in the Lawrence case, arguing to end sodomy laws, from "THE ALLIANCE OF BAPTISTS, THE
AMERICAN FRIENDS SERVICE COMMITTEE, THE
COMMISSION ON SOCIAL ACTION OF REFORM
JUDAISM, THE MOST REV. FRANK T. GRISWOLD, III,
PRESIDING BISHOP OF THE EPISCOPAL CHURCH, THE
METHODIST FEDERATION FOR SOCIAL ACTION,
MORE LIGHT PRESBYTERIANS, THE GENERAL
SYNOD OF THE UNITED CHURCH OF CHRIST, THE
UNITARIAN UNIVERSALIST ASSOCIATION, AND 21
OTHER RELIGIOUS ORGANIZATIONS
I also think it would be interesting for some contributors to read the amicus brief filed in the Lawrence case by the Republican Unity Coalition and The Honorable Alan K. Simpson former US Senator (Republican, Wyoming) calling on the Court to strike down the Texas law on 14th Amendment grounds. The Republican Unity Coalition (“RUC”) is a national or-ganization of conservative Republicans committed to making
sexual orientation a “non-issue” within the Republican Party and throughout the Nation (I think we all know who Alan Simpson is). They stated in part:
One of the most important and least appreciated functions of the Fourteenth Amendment’s Equal Protection Clause is to provide a structural check against the majority oppressing those with whom the majority disagrees. The Framers were acutely concerned with the threat of such oppression by majority “factions” and sought to mitigate that threat by encouraging a diversity of smaller and competing political interests or factions that would make it difficult to form an oppressive political majority. That solution was incomplete, however, and the Equal Protection Clause later provided a textual complement to the competition of factions by requiring that all legislation apply equally to the majority and to the minority. The Constitution ties the fates of minorities and majorities together, preventing selective oppression. The structural check of equal protection thus safeguards all political minorities – and thus all citizens – without regard to whether they are in a suspect class or are merely on the unsuccessful side of a particular political debate.
Under even the most basic level of equal protection scrutiny, Texas’s Homosexual Conduct law lacks a rational relation to a legitimate legislative end. While preserving public morality, in general, is a legitimate state interest ordinarily sufficient to withstand rational-basis scrutiny, stand-alone moral claims uncoupled from other policy interests are insufficient bases for legislative classifications if they are accompanied by substantial indicia of animus against a class of persons. Such substantial indicia of animus can be found in the structure and history of the legislative classification itself, the consistency of application of the asserted moral interest, and the practical operation and ramifications of the law. Because animus against a class is an invidious and impermissible basis for legislative classification, such animus will offset or negate the weight of otherwise potentially valid moral claims and require the State to provide a basis for classification beyond its own non-falsifiable assertions of moral interest. Bare assertions of morality, without more, simply cannot overcome the constitutional infirmity of basing legislative classifications on group animus. In this case, the statute’s inconsistent treatment of identical physical acts by gay and straight couples, combined with its context and history, provide ample indicia of animus toward gays as a class, and thus render insufficient the State’s asserted moral interests for purposes of rational-basis review.
Rick,
I grant the metaphysics, it is the venue I dispute. Men are "endowed by their Creator with certain inalienable rights....", okie dokie; however, someone has to decide what rights are retained by the people and which are retained by the states, and what the practical limits on those rights are.
I think these things should be decided by the people themselves. A federally issued robe and gavel does not give one unique insight into the mind and purposes of the Divinity.