# Conservative dopers vs. gay sex decision **URL:** \ **Category:** Great Debates\ **Created:** [June 27, 2003, 4:19pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786 "2003-06-27T16:19:11Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 29, 2003, 11:32am UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/61 "2003-06-29T11:32:03Z")
> [@](#): > > \*Originally posted by Mockingbird \* > \*\*Are you trying to say that this law _was_ constitutional? \*\* No legal scholar I, but, yes, my pitiful interpretation of what I have read has led me to conclude this embarassment of a law was constitutional. ---
**Author:** ![Kegg](https://avatars.discourse-cdn.com/v4/letter/k/9e8a1a/32.png) [@Kegg](https://boards.straightdope.com/u/Kegg)\ **Post date:** [June 29, 2003, 12:59pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/62 "2003-06-29T12:59:07Z")
SRVick, The differance is consent, a 13 year old cannot give consent. Now how is it different between a man and a woman? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 29, 2003, 2:25pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/63 "2003-06-29T14:25:20Z")
The majority opinion did not use equal protection as a foundation, despite the belief some here seem to have that this is unassailable. No man can have sex with another man. All men can have sex with women. Where is the equal protection discrepancy? I’m missing it. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 29, 2003, 2:32pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/64 "2003-06-29T14:32:52Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*There’s no explicit wording in the constitution that says I have the right to walk. I suppose under your reasoning a bare majority of the state legislature could declare walking to be immoral and force everyone to crawl on their hands and knees. And the federal courts trying to intervene would be “usurping power” by doing this. \*\* Yes, IMO you are correct. That legislature would find their asses tossed out in the next election, you’d probably find little willingness to enforce the law, and the whole unlikely scenario would be a national embarassment. But it would still not be the federal court’s role to correct that particular breed of stupidity, unless there’s a particular constitutional issue in play here that I’m missing. ---
**Author:** ![SRVick](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@SRVick](https://boards.straightdope.com/u/SRVick)\ **Post date:** [June 29, 2003, 2:37pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/65 "2003-06-29T14:37:36Z")
> [@](#): > > \*Originally posted by Kegg \* > \*\*SRVick, The differance is consent, a 13 year old cannot give consent. Now how is it different between a man and a woman? \*\* Which, oddly enough, has absolutely nothing to do with constitutionality. > [@](#): > > \*Originally posted by Diogenes the Cynic \* > **Yes, the difference between hetero and homosexual anl intercourse is the sex of the recipient. That’s the whole point of equal protection, that one group can not have differnt rights than another group. Your logic could apply to virtually anything. A woman driving a car isn’t the same as a man driving a car because a woman has a vagina and a man has a dick. The “not the same” part is exactly the point. They can’t be treated differently just because they’re not the same.** Come now, sexual organs clearly have to do with a sex act much more than driving a car. Out of town for a week without a computer, so I can’t continue, but \*\*Bob Cos \*\* seems to be following my line about why it wasn’t the same act. ---
**Author:** ![Jack\_Batty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jack_batty/32/3201_2.png) [@Jack\_Batty](https://boards.straightdope.com/u/Jack_Batty)\ **Post date:** [June 29, 2003, 2:50pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/66 "2003-06-29T14:50:03Z")
I think the point is … who cares if it isn’t the same “act”. Apples aren’t oranges, but they’re both delicious. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 29, 2003, 2:53pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/67 "2003-06-29T14:53:58Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*There’s no explicit wording in the constitution that says I have the right to walk. I suppose under your reasoning a bare majority of the state legislature could declare walking to be immoral and force everyone to crawl on their hands and knees. And the federal courts trying to intervene would be “usurping power” by doing this. \*\* Yes they would. Though as a practical matter this would never happen – no legislator who proposed such a thing would be in office very long. Democracy itself is a check against some excesses. ---
**Author:** ![gex\_gex](https://avatars.discourse-cdn.com/v4/letter/g/94ad74/32.png) [@gex\_gex](https://boards.straightdope.com/u/gex_gex)\ **Post date:** [June 29, 2003, 2:55pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/68 "2003-06-29T14:55:11Z")
> [@](#): > > _originally posted by Bob Cos_ > No man can have sex with another man. All men can have sex with women. Where is the equal protection discrepancy? I’m missing it. So why the arbitrary groups? Can I apply your reasoning to different groups? Can I say “No white person can have sex with a black person. All black people can have sex with black people.” Saying, as you are, that as long as a law is applied equally to every person in a particular subset of society it is fair or constitutional makes a mockery of any notion of equal protection. There was a discrepancy in the fact that all women can have sex with a man if they choose, but men cannot. Why should women get this privelege that men don’t (didn’t)? And just to answer this question: > [@](#): > > _originally posted by Fang_ > Why do liberals believe “laissez-faire” should apply only to questions of morality, and not to economic issues? To me, it’s that questions of morality are dealt with in the private or personal sphere. They are only the business of those involved. Economic acts usually take place within the public sphere, and hence are the business of society. Of course, it can be in society’s best interest to take a laissez-faire approach to some economic acts. ---
**Author:** ![Tee](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@Tee](https://boards.straightdope.com/u/Tee)\ **Post date:** [June 29, 2003, 3:24pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/69 "2003-06-29T15:24:28Z")
> [@](#): > > \*Originally posted by Bob Cos \* > \*\*Yes, IMO you are correct. That legislature would find their asses tossed out in the next election, you’d probably find little willingness to enforce the law, and the whole unlikely scenario would be a national embarassment. But it would still not be the federal court’s role to correct that particular breed of stupidity, unless there’s a particular constitutional issue in play here that I’m missing. \*\* …which would be equal protection. The law disciminates against homosexuals, not people of one gender or another, but a recognized minority of people who are gay. Had they worded the law differently maybe it would have passed muster, like having sodomy illegal for everyone as it is in MA. (I think.) But I do like the broader majority opinion in this case because it deals with the matter of “liberty” and the recognition that certain life issues ought not to be subject to government approval. So, I’m having trouble seeing the down side to compromising a state’s right to regulate those same issues. ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [June 29, 2003, 3:32pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/70 "2003-06-29T15:32:41Z")
> [@](#): > > \*Originally posted by Bob Cos \* > \*\*No legal scholar I, but, yes, my pitiful interpretation of what I have read has led me to conclude this embarassment of a law was constitutional. \*\* Then as you say it was: prove it. ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [June 29, 2003, 3:36pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/71 "2003-06-29T15:36:37Z")
> [@](#): > > \*Originally posted by SRVick \* > \*\*Which, oddly enough, has absolutely nothing to do with constitutionality. > > Come now, sexual organs clearly have to do with a sex act much more than driving a car. Out of town for a week without a computer, so I can’t continue, but \*\*Bob Cos \*\* seems to be following my line about why it wasn’t the same act. \*\* As you started in with this train of thought, you are responsible to prove it or retract it. Prove that anal sex between a man and a woman are conclusively different. Prove that entry is different. Prove that effect is different. Prove that a blindfolded man would know the difference between being inside of a man’s versus a woman’s anus. Or… retract yoour statement. ---
**Author:** ![Mockingbird](https://avatars.discourse-cdn.com/v4/letter/m/c68b51/32.png) [@Mockingbird](https://boards.straightdope.com/u/Mockingbird)\ **Post date:** [June 29, 2003, 3:40pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/72 "2003-06-29T15:40:09Z")
> [@](#): > > \*Originally posted by Bob Cos \* > \*\*The majority opinion did not use equal protection as a foundation, despite the belief some here seem to have that this is unassailable. > > No man can have sex with another man. All men can have sex with women. Where is the equal protection discrepancy? I’m missing it. \*\* Yes, you are. Why is it equal to say that a man can only have sex with a woman but it is criminal for men to have sex with men or women to have sex with women? It is not equal. To say that relations can ONLY be oppposite sex where same sex sexual expression is just as valid and possible is NOT equal and is forcing a point of view and morality on what is considered acceptable. ---
**Author:** ![panache45](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/panache45/32/64_2.png) [@panache45](https://boards.straightdope.com/u/panache45)\ **Post date:** [June 29, 2003, 4:29pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/73 "2003-06-29T16:29:11Z")
> [@](#): > > \*Originally posted by Bob Cos \* > **No man can have sex with another man.** Then exactly what have I been doing for the past 39.5 years? It sure \*seems like \* i’ve been having sex. Are you implying that people who have sex exclusively with people of their own gender are all virgins? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [June 29, 2003, 4:33pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/74 "2003-06-29T16:33:52Z")
> [@](#): > > \*Originally posted by Tee \* > \*\*…which would be equal protection. \*\* …which would not be in play in the “no walking” hypothetical **Bob Cos** was responding to. \*\* > [@](#): > > The law disciminates against homosexuals, not people of one gender or another, but a recognized minority of people who are gay. Had they worded the law differently maybe it would have passed muster, like having sodomy illegal for everyone as it is in MA. (I think.)\*\* Sodomy of any kind [was not illegal in Massachusetts](http://www.cnn.com/interactive/law/0306/sodomy.laws/frameset.exclude.html), even before the court’s decision. But really, the equal protection argument is irrelevant _because that isn’t the rationale the court adopted_. Only Justice O’Conner thought that the correct rationale. And I think most conservatives would have been more comfortable with that rationale, because while it is not without its flaws (as Justice Scalia points out in Part V of his dissent), it at least has some tangible connection to the text of the constitution. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 29, 2003, 4:53pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/75 "2003-06-29T16:53:25Z")
> [@](#): > > \*Originally posted by SRVick \* > \*\*Come now, sexual organs clearly have to do with a sex act much more than driving a car. Out of town for a week without a computer, so I can’t continue, but \*\*Bob Cos \*\* seems to be following my line about why it wasn’t the same act. \*\* A penis in an anus is a penis in an anus. There is no difference in sex organs. Your argument is ridiculous. [quote] _Originally posted by Bob Cos_ **No man can have sex with another man.** Are you serious? Can you please give us your definition of “sex?” ---
**Author:** ![Scott\_Dickerson](https://avatars.discourse-cdn.com/v4/letter/s/f04885/32.png) [@Scott\_Dickerson](https://boards.straightdope.com/u/Scott_Dickerson)\ **Post date:** [June 29, 2003, 7:08pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/76 "2003-06-29T19:08:11Z")
DEWEY: “…But really, the equal protection argument is irrelevant because that isn’t the rationale the court adopted. … it at least has some tangible connection to the text of the constitution.” I understand the general objection to an “activist court.” But I don’t follow the above-cited quote. The TEXT of the Constitution refers to unenumerated rights “retained by the people” which are not to be “disparaged.” (Amendment IX) The TEXT of the Constitution refers to powers not delegated to the Federal government being reserved to the various States “…or to the people.” (Amendment X) Note that the “or” entails that the powers reserved to the people are so reserved EXCLUSIVE of any claim to them by the States. So it’s right there in black and white. As is the statement that the Supreme Court is to try cases arising under the Constitution. One may find these amendments “silly amendments” (in that they give broad leave to the Court to identify various unenumerated rights and unspecified powers). But the Framers and the Ratifiers were textually empowered to adopt such silly amendments as they pleased. So exactly how does the Court’s identifying (what Bob Bork likes to term) “a right to commit sodomy” not have a “tangible connection to the Constitution”? I fault the Court for not having made express use of these amendments in its stated reasoning; but the main decision does make a personal liberty argument entirely compatible therewith. On what grounds do you disagree? (If you’re saying that it gives the Court too much power–that’s not so much a Constitutional argument as a purely results-oriented objection.) ---
**Author:** ![panache45](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/panache45/32/64_2.png) [@panache45](https://boards.straightdope.com/u/panache45)\ **Post date:** [June 29, 2003, 7:09pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/77 "2003-06-29T19:09:40Z")
And how would you characterize oral sex? Is there really a substantial difference between a man’s mouth and a woman’s? Why should it be illegal if I get a bj from another man, yet legal if it’s a woman (so long as she isn’t charging for it)? Now I suppose some idiot will claim that the adam’s apple makes it a different act. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 29, 2003, 9:14pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/78 "2003-06-29T21:14:44Z")
Because we’re mixing questions of Constitutional interpretation with discussion of the Lawrence decision, I’ve started a separate thread for discussion of what constitutes a Constitutional right. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 29, 2003, 9:24pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/79 "2003-06-29T21:24:54Z")
> [@](#): > > \*Originally posted by Mockingbird \* > \*\*Then as you say it was: prove it. \*\* You want me to prove to you that my opinion is that the law in question is constitutional? Um, you’ll have to take my word for it. If you’re asking me to prove the law was constitutional, that defies a simple proof, by virtue of our own discussion (and the dissent on the SC itself). ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 29, 2003, 9:31pm UTC](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786/80 "2003-06-29T21:31:53Z")
> [@](#): > > \*Originally posted by gex gex \* > \*\*So why the arbitrary groups? Can I apply your reasoning to different groups? Can I say “No white person can have sex with a black person. All black people can have sex with black people.” > > Saying, as you are, that as long as a law is applied equally to every person in a particular subset of society it is fair or constitutional makes a mockery of any notion of equal protection.\*\* I never, ever said it was fair. I said it was constitutional. And, believe me, I’m no constitutional scholar (I just find the topic fascinating). And this may betray my ignorance (has there been a SC ruling on this?) but I believe that prohibiting mixed race marriages–an equally egregious offense against common sense and decency–would also be constitutional. I’ll ask again: if equal protection is so obvious and unassailable, why did the majority opinion not use this as a foundation? [Previous page](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786.md?page=3) [Next page](https://boards.straightdope.com/t/conservative-dopers-vs-gay-sex-decision/184786.md?page=5)