I realize Lawrence vs Texas makes the issue moot from a legal standpoint, but these laws are still on the books. It is shamefull that it actually required judicial fiat to prevent gays from being arrested for engaging in homosexual acts, rather than a more enlightened populace.
I think it is still worthwhile to lobby to get these laws removed. Not just for the symbolic value of it, but because in the next four years Bush may appoint enough “strict constructionist” judges to overturn Lawrence if it got challenged again.
I, however, HOPE Mr. Bush is able to appoint Justices that would take a different view of the Constitution. Bowers was, in my view, decided correctly, and Lawrence was a bad mistake.
That said, I absolutely agree that state legislatures should remove sodomy laws from the books. They are an inappropriate exercise of the state’s police power. It’s just that the federal constitution should not be found to contain a fix for every lack of wisdom the states exercise. We have a dual-sovereign system; each sovereign has its sphere of influence.
So - yes on states removing anti-sodomy laws, but NO on keeping Lawrence.
I just can’t imagine many politicians would go out of their way to strick the sodomy laws off the books. Aside from having better things to deal with what politician wants to be known as a champion for sodomites?
I agree sodomy shouldn’t be illegal I just don’t think any politician is going to waste time with the subject.
Disagree. I think that the people who enacted the laws, and did not repeal them, deserve at least the negligible courtesy of having their will memorialized for the record, however ineffectual their chosen laws have been rendered by five unelected legislators. It’s a small enough concession to people who (apparently mistakenly) believed that they lived in a representative democracy, but I guess today we’re only in the business of making concessions to the sensibilities of those who can’t muster democratic majorities in support of their chosen behavior and pet policies.
As a libertarian homophobe on this issue, I do think the federal judiciary can validly strike down anti-sodomy laws as an invasion of the right to privacy (a right that I, unlike most of my strict constructionist conservative allies, do believe is strongly implied if not outrightly stated in the Bill of Rights). Private adult consensual sex is just not a matter for the government to mess around in (btw, porn & prostitution being commercial transactional activity takes it out of the purely private realm & thus could well be restricted/regulated by government).
I do, Articles IV & IX of the Amendments. Strongly implied in IV while IX does allow for the discovery & acknowledgement by Gov’t of rights not heretofore stated.
It’s funny. Some of the smartest guys, and greatest political theorists and writers, of their time, definitely meant to provide a positive right to privacy (a word that OED tells me had been around since 1415), but, doggone it, despite months of wrangling over every detail of the Constitution, just plumb forgot to put it in. But they did put in some “strong implications” that they meant to, you bet you, no doubt about that.
But the Ninth Amendment is not a source of any rights. The Fourth creates a right of privacy insofar as searches are concerned, but I do not believe we may validly extract a general right of privacy. If we do, we put the judiciary in the driver’s seat: how extensive is this right? What are its parameters? All answers for the court to decide, since they alone can see this right.
If you’re comfortable with a system in which the courts answer these questions… fine.
Will you still be comfortable after another four years of a GOP administration appointing federal judges, confirmed by a GOP Senate?
I’m reading your statement over and not exactly sure what you mean by “lobby.” But if what you really mean is:
“Hey gang! These laws are bad, and we should lobby our fellow citizens and elected representatives, through the customary procedures for adding or removing laws, to take them off the books, because I’m sure we can convince a majority of them that they are substantively unsound and ought to go because sodomy’s way cool” –
Then we’re on the same page – and anyone’s free to knock himself out trying to carry the day with those arguments. But then, if the sodomy crowd could have managed that (i.e., had followed the constitutionally-provided methodology for getting their policy preferences made into law), they wouldn’t have had to run to mommy and asked for a shortcut around that pesky democracy.
I, too, am on that page as regrds the proper method to change laws.
But I’m not sure I agree that the “crowd” made any effort along those lines, and we should not conclude that such an effort is doomed to failure. Rather I’d suggest that the “corwd” in question has simply become so used to redress for laws they don’t like by way of the federal bench that the clerk’s office is their first stop. There’s no legitimate effort to change the laws through the legislature.
I think one of the reasons they don’t try (although some of the organizations were, IIRC, active in the noble cause of trying to overturn these laws on a state-by-state basis, with mixed results) is because they’re aware of the practical impossibility of selling a “pro-sodomy” law through democratic means in North Carolina or Texas. Oregon or Massachusetts, sure, that could happen. So why not have a blend of locally-enacted laws (like, oh, I don’t know, the Tenth Amendment would envision)? Because that’s not good enough for them – nothing less than imposing their preferred policies on everyone in the country, the easy, non-democratic way, is good enough.
Hell, even doing that apparently isn’t satisfactory – we have to remove the now-overridden popularly-enacted laws to avoid residual hurt feelings or the de minimis risk that the people’s will might someday be allowed to be enforced, if the OP’s to be believed.
In deference to the democratically expressed will of the people, no one should use the normal processes of representative democracy to repeal the sodomy laws (OK, I confess I didn’t quite follow that part, but never mind).
No, we should leave the Georgia sodomy law on the books. Then, if Lawrence v. Kansas is overturned, we should lock up 90% of the adult population for not less than one nor more than 20 years. Anything less than sending the people to prison, in accordance with the will of the people, would be undemocratic.
I wasn’t sure if the OP was proposing removing them by democratic process, or by having them “removed” by a non-consensual process similar to that of the undemocratic Supreme Court fiat. I later went back, re-read, and posited that if it were a truly democratic removal of the statutes that the OP was proposing, I’d be fine with it, in which case, the Supreme Court should have butted out and let the representative democratic process run its course, whereupon all the sodomy laws would have been struck down through democratic means (except, they wouldn’t have).
Even if the OP does propose a technically “democratic,” majoritarian process for expunging these laws, at this point, it is hardly democratic in a strict sense, because the proposal has (by virtue of legislation from the bench) been altered from “Do you want to strike the in-force sodomy laws of your state, which are currently valid as far as we know?” to “Hey, shouldn’t we strike the unenforceable sodomy laws from our books, since they’re not being used and have been found to be discriminatory on their face?” Hmmm. The latter kind of sounds easier to convince people of than the former, so the judical thumb remains firmly pressed down on the scale.
Gee, Georgia wasn’t locking up 90% of its adult population before the Supreme Court intervened. The people of Georgia and Texas sure as heck didn’t seem to think they were suffering from Draconian sanction or a denial of their democratic rights. It’s called prosecutorial discretion, it happens (and has always happened) with any law, and it has nothing to do with whether such law is (a) constitutional or (b) sound policy. I could provide similar reductio ad absurdums for any number of unlawful conduct, including some such as speeding or file sharing or failure to declare income that may be statistically even more universally-breached (in some cases) by most adults (I know I was in a position to, and did, technically violate the speeding laws years before I would have even had the opportunity to violate any sodomy laws). The other half of the reason that technically-unlawful conduct isn’t universally prosecuted is because law enforcement doesn’t have unlimited resources or perfect knowledge, which likewise is a silly basis for throwing up our hands and saying that there’s no grounds for trying to make practice X unlawful.
Nah. And by the way . . . the prosecutorial discretion that leads to less-than-universal enforcement of sodomy laws, or any laws, enhances, rather than limits, democracy, because the prosecutors are (get this) usually also elected officials, and will respond to their consitutencies so as to bring the “right” number of prosecutions. Even in Texas, a “conservative” state where the death penalty for murder is in force everywhere, prosecutors in Houston seek it frequently, in Austin, less frequently, and everyone (well, not everyone, especially those Houston defendants) is comparatively happy.
So to recap, we shouldn’t to take sodomy laws off the books through the courts, because that’s an activist judiciary. But we shouldn’t take them off the books legislatively, because that might hurt the feelings of a few bigoted hatepeddlers.
I’ve got an idea. The govrenment is allowed to arrest homophobes and execute them. They aren’t being deprived without due process. The Constitution does not protect the right to hold opinions, merely to express them. As long as the warrants are properly filed, we’re in the clear. Isn’t strict constructionalism great!
Well, I would argue, as I did above, that we should repeal the now-overridden laws because we recognize that the judicial process was inappropriate to get rid of them, but that the laws are simply unwise.
I assure you it’s not what I’m saying. The decision in Lawrence was wrong, and we should work to reverse it. The laws are themselves unwise, and we should work to repeal them. It’s very simple.
Huerta88’s point is:
And there is some validity to that concern; frankly, in the overall scheme of things, I regard the harm there as minor, but perhaps that’s because I believe the laws should ultimately be overturned. In any event, there is nothing stopping a newly energized electorate from re-instating the laws in question once Lawrence is overturned, should that be the will of the electorate.
Well, it’s grander than your flawed understanding of it is, yes.
It’s unclear to me precisely how the law you’re proposing might read. I am reasonably sure it would run afoul of Constitutional guarantees in the First, Eighth, and Fourteenth Amendments even as interpreted by a strict constructionist - not, admittedly, by the strawman of a strict constructionist that you’ve tossed up here.
It’s funny. Some of the smartest guys, and greatest political theorists and writers, of their time, definitely meant to restrict the scope of the equal protection clause of the 14th Amendment to the issue of race, but, doggone it, just plumb forgot to say so.
Sorry, Bricker can’t endorse your argument, since he has in the past refused to endorse mine.
Bricker, I’m curious. Let’s assume that the city of Los Angeles, in an effort to improve its political structure and the quality of its voters, restricted the right to in city elections and on city referendums to only women. The vote quickly passes, 50.1% to 49.9%. What would be the appropriate step for the party that, by the way, simply has no hope of mustering a majority?
