Conservative dopers vs. gay sex decision

[Stratocaster]

*Originally posted by Mockingbird *
**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. **

Sorry, then I’m still missing it (believe me, if the light bulb goes on, I’ll admit it). To forbid same-sex sexual relations to everyone in the state does not, it seems to me, create an equal protection situation.

And, believe me, I am not saying I support the law, or that this form of sexual expression is not, as you say, “valid and possible.” I personally think all legislatures ought to leave such decisions up to the individual. That doesn’t mean it’s unconstitutional if they choose to remain in the dark ages.

[Stratocaster]

[QUOTE]
*Originally posted by Diogenes the Cynic *

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?” **

Read what I said again, in context (including the posts it responded to). I was paraphrasing the law in question, particularly as it relates to equal protection. If you still believe that what I meant was that sex between men is not possible, let me know.

[djbdjb]

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.

Dewey Cheatem Undhow:
Yes they would (be usurping power)

Wow! well, I will give you this, you at least are not hiding behind a smoke-screen. You have grabbed the bull by the horns. Walking can be outlawed.

I think your position is illogical. Before I start, I want to say that you are a better lawyer than I, for you are one, and I am just entering law school. Nevertheless, I think it an open question who has a more logically consistent political philosophy. Your comments are of a type that just boggle my mind, make me shake my head. I think they show how little Political Philosophy is taught in law school, or how little lawyers need to know any Pol. Phil.

Consider a group of people planning a new society. They ponder like this: ‘Some people’, say this group of planners, some people want to go off by themselves and do things, either alone, or in groups all of which understand the actions and consent to doing these things. These things don’t affect us, because we can’t even really tell that they are being done or have been done. Nevertheless, we want to make these people stop.

These ‘planners’ might believe
A: It is morally right for us to stop them.

There might be a variant of this, which is of even more dubvious morality:

A’: It is not morally right, but we have the power to stop these actions, so we will.

Both people who believe A and A’ don’t believe in having a constitution.

They could go a little ways and believe
A’’:Only those things specifically mentioned in the Constitution are protected.

Dewey, you seem within an inch of holding this belief. Prohibiting the free excise of religion is ok, since 1st Amend. protects it, but there is no mention of walking, so a law requiring groveling is fine! Can learned people seriously have such a philosophy?

The whole point of the Constitution is that you have no right to make me grovel! Watching TV in my own house does not hurt anyone else, so you can’t make me not do it!

Does the Preamble mean nothing? The purpose of the Con. is to insure domestic tranquility, secure the Blessings of Liberty. To be free to walk upright, or to have sex in our own homes is a blessing of Liberty.

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.

Of course if a majority is against repressing the pot-smoking, or Allah worshiping minority, then the minority dosen’t need the Constitution to protect them. What about when Democracy persecutes (behavioral) minorities?

What does the ninth amendment mean if not to say that the Con. is not a complete enumeration of our rights, that there are a myriad of rights embodied in its principles?

[Mockingbird]

*Originally posted by Bob Cos *
**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). **

It is part of this thread, and your word is not sufficient.

[Dewey_Cheatem_Undhow]

*Originally posted by Scott Dickerson *
**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.) **

I think the proper reading of the ninth amendment is as a safeguard against exclusivity. Certainly, there are other sources of rights: state constitutions, federal and state statutes, treaties, etc, etc. The ninth amendment simply prevents someone from saying, say, that New York’s constitution cannot provide heightened free speech protections on the grounds that the federal constitution is an exclusive list.

The tenth amendment, strictly speaking, ought to be unnecessary: the fact that the federal government’s powers are enumerated ought to logically lead to the conclusion that powers not so enumerated lie with the states. But it’s a good reminder of that fact, and the concept of a limited federal government is abused so often that the founder probably ought to have reprinted the tenth as amendments eleven through twenty as an even greater reminder.

Suffice it to say I’ve hashed out this stuff on the boards over and over and over again, to the point where I’m a bit weary of the discussion (Polycarp, for example, vehemently disagrees with me on this stuff). If you really want to know where I stand in detail, the search function is your friend.

[Tee]

*Originally posted by panache45 *
**Now I suppose some idiot will claim that the adam’s apple makes it a different act. **

I hope someone answers, I’m curious now.

Originally posted by Dewey Cheatum Undhow
Sodomy of any kind was not illegal in Massachusetts, even before the court’s decision.

MA has old sexual conduct laws like other states do, or did, and I’m not aware of any being repealed in the past few years. One is a “crime against nature” law that the courts have determined to mean anal sex, and another is “unnatural and lascivious acts” which could mean either oral or anal, I guess…neither were passed with homosexuals in mind though, and I have no idea why they are still around. (Historical value?) Plus there are limits to how they can be enforced. The gay community might have given these a pass or something, or maybe they have been neutralized by other rulings…no one I know is overly concerned about either law, believe me…but to my knowledge they are still on the books. So, is sodomy illegal in MA…um, {{shrugs}}. Maybe.

(I’m not arguing, just stating what it looks like.)

[Dewey_Cheatem_Undhow]

*Originally posted by djbdjb *
**Dewey, you seem within an inch of holding this belief. Prohibiting the free excise of religion is ok, since 1st Amend. protects it, but there is no mention of walking, so a law requiring groveling is fine! Can learned people seriously have such a philosophy? **

Strictly speaking, I think a law mandating “groveling” would run afoul of the first amendment since it would appear to mandate a certain type of speech.

But to address the more general point you’re making: the Constitution protects what it protects and that’s it. It does a disservice to our concept of self-governace to handle things otherwise. **

Does the Preamble mean nothing? The purpose of the Con. is to insure domestic tranquility, secure the Blessings of Liberty. To be free to walk upright, or to have sex in our own homes is a blessing of Liberty. **

The Preamble is exhortative. It is not legally cognizable. You will not find a judicial opinion decided on the grounds of the Preamble (though it may be used to aid in the understanding of other provisions). **

Of course if a majority is against repressing the pot-smoking, or Allah worshiping minority, then the minority dosen’t need the Constitution to protect them. What about when Democracy persecutes (behavioral) minorities? **

What about it? Your examples illustrate the principle in action nicely. Islamic religious practices are protected by the free exercise clause. Pot smoking is not protected (though criminal defendants of any kind naturally retain the protections of amendments 4, 5, 6 and 8). Ergo, there is a constitutional right to worship Allah, but no constitutional right to toke up. **

What does the ninth amendment mean if not to say that the Con. is not a complete enumeration of our rights, that there are a myriad of rights embodied in its principles? **

See my reply to Scott Dickerson.

[Dewey_Cheatem_Undhow]

*Originally posted by Tee *
So, is sodomy illegal in MA…um, {{shrugs}}. Maybe.

All I can say is that both CNN and the SodomyLaws website disagree with your assessment. Massachusetts’ laws were wiped out via judicial decisions in 1974 and 1977, according to the Sodomy Laws site.

[Blalron]

*Originally posted by Dewey Cheatem Undhow *
**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. **

I believe that in the case of sodomy laws, your assumption that their remaining on the books represents the “will of the people” is an erroneous one.

Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, regardless of whether mainting the status quo is actually desirable.

[Blalron]

It does a disservice to our concept of self-governace to handle things otherwise.

Stage 4 of the Kohlberg morality scale. Rigid adherence to law and order.

[Dewey_Cheatem_Undhow]

*Originally posted by Blalron *
**Stage 4 of the Kohlberg morality scale. Rigid adherence to law and order. **

Not so. A belief in democratic decisionmaking is not to be married forever to any particular set of rules. Quite the opposite, really: it is to embrace the power of the people to set the terms under which they live. Those rules can, do, and should change as time goes on.

[Dewey_Cheatem_Undhow]

*Originally posted by Blalron *
**I believe that in the case of sodomy laws, your assumption that their remaining on the books represents the “will of the people” is an erroneous one.

Lack of exposure to the problem is likely to lead to indifference, and indifference and ignorance result in preservation of the status quo, regardless of whether mainting the status quo is actually desirable. **

Forty years ago, every state had an antisodomy law. Today (ignoring the Supreme Court’s opinion), that number is thirteen. Clearly, change is possible. It takes work, yes. But then most worthwhile things do.

[djbdjb]

*Originally posted by Dewey Cheatem Undhow *
Strictly speaking, I think a law mandating “groveling” would run afoul of the first amendment since it would appear to mandate a certain type of speech.

Again, I guess I can do nothing but sit with open mouth and boggling mind. You know there is something wrong with such a law, but you can only shoe-horn it in to the languague of some Amendment.

But to address the more general point you’re making: the Constitution protects what it protects and that’s it. It does a disservice to our concept of self-governace to handle things otherwise.

The Preamble is exhortative. It is not legally cognizable.

I think both of these statements are from a certain type of political philosophy. It may be the one you hold, and that many others hold, but I don’t think they are flat fact.

How is it a disservice to the concept of self-governance if I want to object that a majority has the right to vote that I wear clothes with a large yellow star of david on the back? And this example has nothing to do with Religion. For example, they could decide I need to walk around in humiliating garb because I have the effrontery to espouse Libertarian ideas.

And I will take no comfort if you can contort yourself enough to find a …(let’s see here, what would be a real stretch, how about) Second Amendment protection that you claim would protect against this eventuality.

[The_Ryan]

Mockingbird

and your word is not sufficient.

Cite?

Blaron

Stage 4 of the Kohlberg morality scale. Rigid adherence to law and order.

Or perhaps “lawful evil”, according to RPG classification.

DCU

Not so. A belief in democratic decisionmaking is not to be married forever to any particular set of rules. Quite the opposite, really: it is to embrace the power of the people to set the terms under which they live. Those rules can, do, and should change as time goes on.

But what you describe is exactly what Level 4 is: accepting society’s rules because they are society’s rules. If society changes its rules, someone operating at Level 4 would change their rules.

[Stratocaster]

*Originally posted by Mockingbird *
**It is part of this thread, and your word is not sufficient. **

Um, OK. I will live with the shame of you not believing that I hold the very opinion I am on the record with here.

[Dewey_Cheatem_Undhow]

*Originally posted by djbdjb *
Again, I guess I can do nothing but sit with open mouth and boggling mind. You know there is something wrong with such a law, but you can only shoe-horn it in to the languague of some Amendment.

Yes, imagine that: when determining if something is or isn’t constitutional, turning to the actual provisions contained within the constitution. What a crazy, radical idea. :rolleyes: **

But to address the more general point you’re making: the Constitution protects what it protects and that’s it. It does a disservice to our concept of self-governace to handle things otherwise.

The Preamble is exhortative. It is not legally cognizable.

I think both of these statements are from a certain type of political philosophy. It may be the one you hold, and that many others hold, but I don’t think they are flat fact.

**The first statement is obviously a statement of belief on my part. No argument there.

The second statement is factual. The Preamble is a nice poetic flourish to remind us of our better angels, but it isn’t enforceable: it doesn’t say “the government must do this” or “the government cannot do that.” You won’t find any cases in the 200+ year history of this country where a law has been overturned on the grounds of violating the Preamble. **

How is it a disservice to the concept of self-governance if I want to object that a majority has the right to vote that I wear clothes with a large yellow star of david on the back? And this example has nothing to do with Religion. For example, they could decide I need to walk around in humiliating garb because I have the effrontery to espouse Libertarian ideas. **

Again, this raises first amendment free speech questions as well as equal protection questions. I can even see a first amendment free assembly issue in there. I have no problem with legal challenges to such laws because there is a concrete basis within the constitution enabling you to do so.

[Dewey_Cheatem_Undhow]

*Originally posted by The Ryan *
**But what you describe is exactly what Level 4 is: accepting society’s rules because they are society’s rules. If society changes its rules, someone operating at Level 4 would change their rules. **

I don’t think anything about my viewpoint means that people need to sit passively by and accept whatever rules are thrown their way. Indeed, I embrace the right of people to bring about change – to lobby, to protest, and above all to vote. If the law is wrong, then let the law be changed – but let it be changed by those who have to live under its provisions.

I hate these kinds of silly arbitrary categorizations, but if anything I’d think this all fits much better into Level 5. And I’m fine with that, because Level 6 is a recipe for anarchy, given that there is hardly universal agreement on what ethical principles are valid and how they should be ranked.

[Polycarp]

Dewey, I can see clearly the proposition that the proper way to change an unjust law is through the acts of their elected representatives rather than through lawsuits. However, I would raise to you the question of what happens in cases of the “tyranny of the majority” and even more so when it’s the “tyranny of the entrenched minority.” As I recall, one of the primary justifications in the majority opinions in Baker v. Carr and Reynolds v. Sims was that there was no effective way outside the courts (save open rebellion) for the aggrieved parties to gain their right to fair and equal representation in the legislature. Would you be so kind as to address how you would see the proper recourse in such a case?

[Dewey_Cheatem_Undhow]

*Originally posted by Polycarp *
**Dewey, I can see clearly the proposition that the proper way to change an unjust law is through the acts of their elected representatives rather than through lawsuits. However, I would raise to you the question of what happens in cases of the “tyranny of the majority” and even more so when it’s the “tyranny of the entrenched minority.” As I recall, one of the primary justifications in the majority opinions in Baker v. Carr and Reynolds v. Sims was that there was no effective way outside the courts (save open rebellion) for the aggrieved parties to gain their right to fair and equal representation in the legislature. Would you be so kind as to address how you would see the proper recourse in such a case? **

I never said recourse to the courts was always inappropriate. There is in the Constitution an equal protection clause, and a guarantee of a republican form of government. They were put there by democratic processes. They deserve to be vindicated when violated by a state.

There are problems with some of reasoning in the cases you cite – they reject as unconstitutional at the state level any form of geography-based representation, in spite of the fact that this very system determines the makeup of the United States Senate – I have no problem with requiring, as a matter of equal protection, that a population-based system accurately reflect the makeup of the population of a state.

[Scott_Dickerson]

DEWEY:

I believe I grasp your point. Your Constitutional philosophy is at least as self-consistent as any alternative philosophy of the subject–which is to say, arguably so, and thus possibly not entirely.

You are already well-aware that the very great majority of the American populace, and of Constitutional scholars, law-school professors, Federal judges, and historians, do not share your philosophy. Not to say that they don’t share a good chunk of it; what they don’t share is “your philosophy” taken as a coherent whole.

They (we) may be right or may be wrong. I’m content to thank you for your steadfast forthrightness.