You write this AFTER the 12-pack of beer right?

You wrote this AFTER the 12-pack of beer right?

(oops!)

Nah, it would be illegal for me to drink a 12 pack. I am legally drunk after just 1. Why ya think I'm so pissed. (For the Brits - pun intended)

Rosemary,

De-caf.

:o)

Since when is it illegal to be "legally drunk"?

You can be on the sidewalk in front of your house and be arrested for public intoxication. So long as you are on public property, or in the view of the public, you may be arrested for public intoxication.

Exactly.

It just takes one busybody that has a phone.

The root of the discussion is the definition of rights. Some people believe that sex is a right. If that were the case, there could be no restrictions on where it may occur and clearly that is not the case.

The Second Amendment, for example, says that bearing arms is a right. We have unConstitutional laws that prohibit that. However, there is nothing in the Second Amendment that suggests that you have a "right" to fire a gun in the public street. Shooters fully recognize that carrying and using in self-defense are entirely different from casual use. Owning/carrying is a right. Using in self-defense is a right. Discharging for other than those purposes is not a right.

The issue of sodomy being Constitutional or not gets into the gray area of privacy. If consenting adults do something behind closed doors, and it is truly "private," then the laws are moot. If no one knows about it then it is truly private. If people know about it (you leave your door or curtains open) then it is no longer private.

The Constitutionality of the law would occur only when something is no longer private. Suspecting that someone is doing something "private" behind closed doors is not enough to gain entry (a warrant).

Public sex is illegal. Laws which make public sex illegal are not unConstitutional. Therefore, the act CAN be regulated. It is wrong to suggest that sex (traditional or sodomy) is a "right." Only privacy is a "right" (4th Amendment). The government may not obtain a warrant to come into your bedroom to see if you are having sex. That would be a violation of your privacy rights. But if your door is open, it is no longer private, and Constitutional laws "can" come into play ("should" is another matter).

The Legislators can choose to overturn laws or make new ones in the arena of sex. But it's our job, as Rosemary stated, to make them to do.

You know, I think I like the atmosphere in here a little better with both you and Dean quitting smoking at the same time: it adds just a wee touch of sharpness to what was sometimes a Mr. Rogers Neighborhood atmosphere of hyper-tolerance and nonjudgemental feelgoodism. Plus, I no longer hear Age of Aquarius playing softly in the background.

Nice rant, Rosemary.

Some people believe that sex is a right.

Is that the same as saying Americans have a right to sex?

Woo-hoo!

Where's the government department in charge of that? ... I just might become a liberal again.

"Only privacy is a "right" (4th Amendment)."

Damn. Any place where you can still have a right to liberty?

Right-on Rosemary! Who knew libertarianism was enhanced by nicotine withdrawal. Just another good reason to quit.

Mrs. du Toit,

I suspect, but cannot prove, that the Founders did believe that a married couple does have the right to procreative sex in the privacy of their home. As such I believe it is covered under the ninth amendment.

What do you think?

Yours,
Wince

((I don't want anyone telling me I can't smoke what I want))

I believe you are referring to cigarettes here, but does this freedom you desire include crack and other controlled substances?

((fuck who I want))

Should people be allowed to "fuck" kids?

((and drink a 12 pack of beer after I'm done"))

No law says you can't drink a 12 pack or even a 24 pack of beer. You can buy as much as you like unless you are an alcholic, a minor or legally insane. You can not drive after having drank too much, however.

Interestingly, the laws regulating drinking and driving are much more stringent in the U.K., which is why most people do not drink and drive there. Most people there take taxis home from the bars if they've been drinking excessively. I suppose less people are killed by drunk driving as a result of this tough approach.

"The Legislators can choose to overturn laws or make new ones in the arena of sex. But it's our job, as Rosemary stated, to make them to do. [sic]"

I couldn't possibly agree more: it is the job of the populace to organize and advocate for the repeal of laws that, for whatever reason, are against the public good.

However, I'd like to challenge the assumption that gay rights activists went directly for the judicial solution when it comes to sodomy laws. Attempts have been made for decades to repeal sodomy laws, and those attempts have been unsuccessful.

Why have they been unsuccessful? Lack of advocacy on the part of the populace, which translates to lack of pressure on the legislatures.

In short: not enough people felt that sodomy laws should be repealed. So they weren't. And so, each and every sexually-active gay and lesbian person who lived under those laws was a potential criminal. All it takes is one fraudulent call to the police.

Coming from the opposite perspective constitutionally, I personally believe that private, consensual sex *should* be a constitutionally-protected right. Sex, in all its permutations and with all its powerful cultural, emotional and religious significance, is too important to entrust to the whims of the government *or* the people. If it's private and it's adult and it's consensual, it should not be regulated, unless there is a compelling state interest. That's currently what's happening with the 2nd Amendment: the question isn't whether people should be able to own guns. The question is how and when those guns may be used or carried, assuming there is a compelling state interest in restricting that.

But there isn't a whole lot of support for *that* either. There are plenty of people who don't see sex as a right -- mostly because there don't seem to be any laws that affect them personally. Show me the straight married couples who worry about getting arrested over their sex lives. Unless they're cousins or one is a minor (and not even THEN in some cases), I doubt you'll find even one.

On the one hand, there isn't enough support for the repeal of sodomy laws. On the other hand, there isn't enough support for the inclusion of sexual relations in our constitutionally-protected rights.

Given this environment, I think it would come as no surprise that gay and lesbian Americans, seeking to live without the taint of criminality for consummating their relationships -- the very basis of their own families -- would approach the judiciary for redress of their grievances, as other venues bore no fruit.

There are plenty of people who don't *agree* with sodomy laws. But I don't see them advocating for their repeal. Because for them, it isn't a big enough deal. That's cold comfort to those of us for whom it *is* a big deal.

We have to live in this world, at this time, in this life. Why wouldn't we do everything we can to make sure we can do so with as much freedom as possible? You can point the finger at our judicial over-reaching, or you can point the finger at the relative apathy of the non-gay populace. Either way, we're in this together and *still* I see little opportunity for cooperation.

Wince, answering that requires a look at what laws existed at the time. Adultery and sodomy were illegal. Sodomy was a crime--criminal code. I am not sure if Adultery or sex outside of wedlock was criminal or civil.

I spent a summer, 1964, in North Carolina. One of the couples (acting troop, summer stock theatre) were marched down the center of town for checking into a hotel together, without being married. In North Carolina, it was illegal. I would suspect (but I'm not certain) that many states have similar laws during the time of the Founders.

Married people didn't have a "right" to have sex, at least according to my understanding of religious teaching at the time. It was more along the lines of a "duty" or imperative. Marriages were not official until they had been consumated. So "right" may not be the correct word in viewing the Founders opinions on the subject. I have a hard time believing, given my understanding of the diversity of opinions on these types of issues, that the Founders would have felt that it was something endowed by the Creator.

What gets really confusing however, is that the Ninth Amendment includes a delegation to The People or to the States. Just because something is not articulated as a Right in the Bill of Rights, does not mean that Rights cannot be surrendered (not taken, given). If The People of a particular state decide that sex between a married couple is not a "right" that's up to The People of that state. The only thing the Bill of Rights does is create a covenant, or limitation on what the Feds may do, it certainly does not preclude what the individual states may do, and The People residing within.

They did recognize common law marriages--which was a cohabitating couple, because Franklin had a common law wife.

Wince, answering that requires a look at what laws existed at the time. Adultery and sodomy were illegal. Sodomy was a crime--criminal code. I am not sure if Adultery or sex outside of wedlock was criminal or civil.

I spent a summer, 1964, in North Carolina. One of the couples (acting troop, summer stock theatre) were marched down the center of town for checking into a hotel together, without being married. In North Carolina, it was illegal. I would suspect (but I'm not certain) that many states have similar laws during the time of the Founders.

Married people didn't have a "right" to have sex, at least according to my understanding of religious teaching at the time. It was more along the lines of a "duty" or imperative. Marriages were not official until they had been consumated. So "right" may not be the correct word in viewing the Founders opinions on the subject. I have a hard time believing, given my understanding of the diversity of opinions on these types of issues, that the Founders would have felt that it was something endowed by the Creator.

What gets really confusing however, is that the Ninth Amendment includes a delegation to The People or to the States. Just because something is not articulated as a Right in the Bill of Rights, does not mean that Rights cannot be surrendered (not taken, given). If The People of a particular state decide that sex between a married couple is not a "right" that's up to The People of that state. The only thing the Bill of Rights does is create a covenant, or limitation on what the Feds may do, it certainly does not preclude what the individual states may do, and The People residing within.

They did recognize common law marriages--which was a cohabitating couple, because Franklin had a common law wife.

That means that a State could decide, through its legislature, that sexual relations between consenting adults are not under the purview of the government of that State. There is also some confusion about the 9th Amendment: is it exclusive or inclusive? Can the state regulate anything not enumerated in the Bill of Rights, unless specifically stated otherwise, or can the state regulate *nothing* not enumerated in the Bill of Rights, unless specifically state otherwise? It's an important difference that I myself am not clear on.

I'd love to see a solid constitutional interpretation that could find, perhaps under the 4th Amendment, that private consensual sex may not be regulated by the state. Barring that, I'd love to see an Amendment.

However, I think we all know how likely that is. Unless all self-identified gay and lesbian Americans want to move to another country, however, another solution will be required, as the bulk of us are neither going away nor backing down. A solution will be required, and "the people" will need to help find it, as their action *and* inaction brought us here.

My understanding of the 9th Amendment was to specify that what is not specifically mentioned is retained by The People (by default). But...

Rights can also be surrended by The People to their government. The People in a state may decide to surrender a right to their local municipality, county, or state.

9th Amendment: Rights exist which are not articulated. Rights may also be surrendered to the government, at some later point (10th).

You can't interpret the 9th without the 10th, and clearly it may be either (people retain an individual right or they may surrender it to their state, by state constitution, or legislation made by elected representatives), depending on the will of The People in a particular area/state.

John Kusch,

I think that the apathay that you find in people seeking to repeal sodomy laws has less to do with the fact that people don't think it will affect them because they are not gay and more because they believe it will not realistically affect anyone because it is, except in very rare cases, unenforcable.

People have encountered the same apathy in attempting to repeal adultery and fornication laws, which affect much larger populations. I think the basic apathy comes, not from not caring about gays, but rather from not believing that such laws make a difference in people's private lives, and that the laws do encourage people to keep those aspects of their lives private.

People don't mind that those things happen in private(in fact many people practice some of them), but many also do not think those issues should be public and threfore are not concerned with laws that are, typically, only enforcable when those actions become public.

Are they perhaps overlooking those situations where the government can invade a persons privacy(when there is probable cause to believe wrongdoing is occuring)? Sure. Yet, I believe that it is a remote possibility to enough people that they are not motivated to inact change(especially since the pushiment for most of these offenses is not very severe)

It gets tiring pointing out that rights carry responsibilities. At the least, negative consequences to yourself are borne by yourself.
I'd be happier with this talk of rights if everybody talking this talk posted a $25,000 bond to be forfeit the first time they wanted the State to bail them out of the (generally predictable) negative consequences of acting out some right.
By The State, I might mean, say, insurance companies and other institutions.
Cycle sans headgear and get a cranial injury? Take out a loan.
Smoke? Don't bitch about smoker surcharges for life, disability, health insurance.
Screw around? STDs are on you. Don't even think of submitting a health insurance claim.
I'm just getting started, but it's time to go home.
Later.

As for the rest, the problem is that almost all of us, when we stop to think about it, agree that there should be some level of regulation to all of these things.

At the very least, most agree that sex, cigarettes and alcohol should be restricted from children(though I'm sure there is much dissent about what exact age would be approprate for each).

Unfortunatley that opens the door. Then you get all sorts of people attempting to "correct" things. Obviously some adults cannot handle each of these things responsibly. So people go in with the intention ot correct that. Guns are treated the same way. Some people cannot handle them responsibly and others are hurt, so regulations are in force to prevent that.

To me, the problem with this is that it goes against once of the most basic tenants that this country was founded on, which was to trust the people.

That was one of the more radical ideas in the founding of this country. To acutally trust the masses to rule themselves, to take responsibility for their lives, and to handle it. Most of the rest of the world at the time believed to a greater or lesser extent that the majority of people needed to be ruled.

The sad truth is that not all people can handle that responsibilty. And with things like alcohol, sex, guns and even with cigarettes those that use them irresponsibly can cause harm to others. It is that harm that people seek to prevent, and it is in that that the goverment should have the power to act.

I believe, however, that such action should be designed to create a deterrant to causing harm, rather than as pre-emptive action to prevent situations where harm can occur.

Our government was founded on the idea that the people were able to accept self rule through representation. It was, in essence, a claim that people had the right to be free, to chose their own fate. Of course, there are some restrictions that must be placed on that freedom. However, those limitations should be in the form of reprisal, to create a deterrant to harmful behavior, not a limitiation on freedom in the hopes of preventing a harmful situation from developing.

That is where legislation has crossed a line with me. We have begun to reverse that idea. We have begun to legislate less trust for the people. It's easy for people to do. We all want to prevent harm wherever we can, and in the small case by case basis, a lot of people see the small loss of freedom as a small price to pay to do so. The price, however, is far higher than most people realize. As we erode away at the trust that we have for people, we erode away at the foundation of what made this country great.

Certianly not all people can be trusted, but we must trust the people. As a whole we cannot assume that they are not worthy or capable. Once we do, we begin to decend back into the thinking that was prevalent before this country was formed. With people believe that that masses cannot be trusted and must instead be ruled and regulated. Trust the people, revoke trust for individuals that have shown they are not worthy of it, but not revoke that trust to all based on the actions or thrath of actions of a few.

I believe Rosemary is using the "reasonable person standard" when speaking about what we should be allowed to do. Of course no reasonable person in our society would advocate sex with children. Laws define the limits of behavior whether individual or collective, but the intent is to protect not hinder freedom. Of course most social conservatives and religious fundamentalist have no problem with the fact that the government has previously enacted laws that restrict a man's right to suck another man's dick EVEN in the privacy of his own home.
The act is not obscene or vulgar; the law forbidding it is offensive. The real crime is that it has taken this long to overturn those laws. Not that I plan to run out and suck a dick tonight...my wife would be pissed (American meaning), but the state shouldn't stop me.

BTW Rosemary, you kiss Dean with that mouth? WTF over.

BTW Rosemary, you kiss Dean with that mouth?

Yeah. And he likes it.

The rest of what you said was spot on.

There is always gonna be that one person who takes what you say and twists it to an extreme. Eh, what can you do?

I don't have a right to have sex; I'm a southpaw.

I favor Jerry Pournelle's rule, which I believe was not original to him. It comes from some notable English woman:

Don't do anything in public that might scare the horses.

Bill

Nice point, Tim. Except that people are actively trying to affect the "reasonable person standard". Maybe right now no reasonable person could argue that adults can have sex with children...but the current movement to normalize homosexual relationd dovetails nicely in with the aims of NAMBLA to normalize pedophilia.
Sure, you and I draw the line between the two. NAMBLA members don't. If they can convince enough people to agree with them, does that mean the "reasonable person standard" is useless?
Who decides, after all, what the "reasonable person standard" is? I'm sure a majority of residents of most of the states would disagree with the Massachusetts State Supreme Court as to what is "reasonable".
Standards exist for reasons. You erase any one standard for your own personal conscience, and the whole society is affected, and you can't stuff the genie back in the bottle. This is what I mean when I say I'm conservative. I don't want to change things just to see what happens. I fear the homosexual movement is our culture's Pandora's Box.

Rights can also be surrended by The People to their government. The People in a state may decide to surrender a right to their local municipality, county, or state.

A right can never be surrendered, transferred, proxied, or given away. A right is inalienable and is an inherent part of being human, you cannot give away that which is inhearent. Which is why privacy is a right and driving a 105 MPH down a city street is not.

...and the 9th and 10th is aslo modified by the 14th.

nathan,

C'mon, don't be afraid of the gay movement. What's the worst that can happen? They're not out RECRUITING team members. Remember, not too long ago, the majority of Americans were against interracial marriage, but we see what a bunch of mouth breathers those people were. Gay people should be allowed to get married and serve openly in the military so they can suffer with the rest of us. The economics of allowing gays to marry completely jive with fiscal conservatism and capitalism.

Nambla will never, NEVER, in any society inspire anything cepting outrage and anger....most deservingly so.

I have one absolute standard governing my personal conscience that can never be erased and by which I judge myself and all others: "Thou shalt not be despicable." That stetement "homosexuals = pedophiles" is a despicable Goddamned lie and you know it, exactly the same as the one that said "Jews ritually murder Christian babies", a product of the exact same mentality and producing the exact same consequences.
It should not be necessary to add disclaimers whenever one discusses a certain subject. When I discuss sex I should not have to throw in the disclaimer "but only for consenting adults". Just as, if, e.g., I say "The Cat in the Hat is a lousy movie" I should not have to add "but I don't want the government to censor it". Certain things should be understood unless clearly stated otherwise, at least by the non-retarded.
As for the argument that "sodomy" laws were OK because they were rarely enforced: The FACT is that they WERE enforced. They were meant to be enforced. I've read the texts of all those laws and not one had a clause at the end saying "Just kidding". Sexual relations between consenting adults in their own homes, heterosexuals as well as homosexuals, even married couples, were punishable by anything from fines to life imprisonment.
The FACT is that John Geddes Lawrence and Tyron Garner were ARRESTED in the middle of the night, hauled off to jail in their underwear, and slapped with a $200 fine each. To those who say this should have been left to the legislature instead of the courts, the FACT is that these two men were not taken before the legislature but before a _court_, and so they appealed to higher _court_. What else in thunderation were they supposed to do?? Meekly submit to such an outrage? Should Rosa Parks have meekly gone to the back of the bus? And, yes, I dare to equate homosexuals with blacks and Jews.
To every single one of you who lives in Texas or any other state where these laws were on the books, and who did not speak out against such laws, to every one of you who said "well, those laws are only rarely enforced" or "well, those laws only affect fags" or "it's only about sex", to every one of you who did not lift a finger to prevent the arrest of these two men -- and who NOW say "yes, those laws were silly (or daffy or goofy or loopy), but the Supreme Court should have left it to people like us to repeal them", to you I say: I spit on you. Harsh, I know, but that's the way I feel. That's the way I am. This whole thing pisses me off. I've had it with so much hypocrisy and lies. _MY_ most sacred rights are at stake here.

Hey Steven?

You just spit on me, and my wife.

Oh, I agree that the sodomy laws were horrible. But they weren't unConstitutional in my view.

By the way, I think people like you are as big a threat to gay rights in this country than the "homos are pedophiles" hatemongers, simply because your self-righteous, pompous, unable-to-tolerate-dissent attitude alienates people who would otherwise be on your side.

Your inability to see that there are democratic principles at stake here speaks volumes about your ultimate attitude. You'd rather be ruled by benevolent dictators called "judges" than trust your fellow citizens in the voting booth. Fascinating.

Ah well. I can understand why your emotions would overcome your principles.

By the way, I've done things I could be put in jail for, if I were caught. It makes me angry, but I don't think it's unConstitutional either, and I'm afraid of judges who use their own ideas of what's moral and immoral to usurp democracy. I'm glad you admit to having no respect for people who feel that way, though. At least we know where you stand.

Dean: I do not spit on your wife, since it looks to me like probably Rosemary WAS opposing sodomy laws BEFORE the case went to court, and maybe you were, too. I'll give you the benefit of the doubt on that. My emotions are completely consistent line with my principles, which are _not_ democratic, certainly not any more than were those Madison or Adams, who abhorred majority rule as much as rule by a king. "Democracy" is not anywhere in the Constitution and that was intentional. I am an elitist and proud of it, as well as selfish and intolerant (i.e., absolutist). Western culture, in fact all culture, was created by elites. I'm glad you know where I stand. That's my intention. I wish I knew where you stood. By the way, if you'd actually read my comment instead of merely being "put off" by my intolerant tone (why is it that "reasonable" people have the most trouble following an argument?), you'd have remembered what I said about the FACT that John Geddes Lawrence and Tyron Garner were ARRESTED and hauled before JUDGES in a COURT, _NOT_ before VOTERS or a LEGISLATURE. You didn't mention that fact in your reply. If you want to abolish courts and judges and juries and simply put everything to a vote, then make your case for a Constitutional amendment to that effect.

Dean and Rosemary: I apologize to the two of you. I ought to have made it clear that that I do not include either of you among those whom I was ranting against, but some of the commenters here, and I ought to have made it clear that I LIKE this post by Rosemary. What she wrote here is excellent. I do not, however apologize to any others who read what I wrote and didn't like it. If the shoe fits, wear it.

"You erase any one standard for your own personal conscience, and the whole society is affected, and you can't stuff the genie back in the bottle. This is what I mean when I say I'm conservative. I don't want to change things just to see what happens. I fear the homosexual movement is our culture's Pandora's Box."

I think as long as the legal and social welfare of gay and lesbian Americans is seen as a narrow wedge issue, or something equated to a passing fashion or an ephemeral preference, then people will continue to make arguments like the above. Thanks for spitting on my family. You don't know that's what you're doing, Nathan, but that's exactly what you're doing.

Your NAMBLA argument is the typical argument: cite the most extreme expression of a particular school of thought, ignoring all complexities or mitigating factors, and use it as a ward against any incremental progress in any good direction. Your argument could just as easily be used against Capitalism, religion or any other human force that requires checks and balances.

It's part of our legal framework that children cannot enter into contracts. To consent to sex or to enter into marriage is a contract. As minors cannot legally consent to anything without parental approval, I think that lays out the legal framework that would support society's moral disapproval of children having sex with adults. Gay people (about 99.999999% of whom are *not* NAMBLA members and who do not endorse or support or advocate for NAMBLA) understand this. Why don't you?

As for the "inalienability" of rights, such rights can be and are violated around the world, every day. Which rights can and cannot be given up or taken depends on our society more than it does a piece of paper.

Our rights are inherent in our nature as human beings, but they depend on our willingness to stand up and fight for them. Someone once spoke of "the four boxes of freedom: the soap box, the ballot box, the jury box, and the cartridge box."