Otto: Bowers v. Hardwick is probably one of the worst Supreme Court decisions ever written – whether or not you agree with the contentions of either side in it. But effectively, it does not deny gay people or anyone else the right to privacy; the majority decision contented itself with denying Mike Hardwick’s claim that there was a constitutionally protected right to engage in “sodomy” – i.e., anal or oral sex.
The case is interesting: a cop, apparently anti-gay, issued a traffic ticket (parking IIRC) to Hardwick outside the gay bar at which he worked. Hardwick paid the ticket. The cop nonetheless went and got an arrest warrant from a judge to make Hardwick appear in court to pay the ticket. Armed with this (invalid) warrant, he appeared at the door of Hardwick’s apartment to serve it. Hardwick was inside, having sex with another guy. A friend admitted the cop to the apartment (I believe this is contrary to Fourth Amendment practice; right, Sua?) and he proceeded to arrest Hardwick under Georgia’s sodomy law. The D.A. wisely refused to prosecute, and dropped charges. Then Hardwick sued the D.A. under his contention that the sodomy law was unconstitutional. The Supremes declined to see it that way.
Given that assortment of things, I can very easily see a case for a privacy violation, and would argue Hardwick’s case along those lines. But Hardwick asserted his right to engage in sexual conduct per se and the Court took the extreme narrow view that, no, nothing in the Constitution can be construed to give an individual the right to engage in a given oral or anal sexual practice.
The commentator who remarked that “*Bowers v. Hardwick is a real pain in the ass” was not merely being witty but profound. Almost everyone who argues about it does not seem to have looked at the actual case.
Justin: Certainly you have the right to your opinion about what marriage and sex ought to be. But the question before the house is, why should your opinion (and that of millions of others) be enforced, as opposed to that of gay people who wish to make a marital commitment to each other and have it recognized by the state and those of us who, not being particularly interested in contracting a gay marriage ourselves, see the prohibition of their wishes as discrimination against them.
At rock bottom, the only sound arguments against gay marriage that I have seen found it either on the concept that marriage is for the purpose of having children or on religious beliefs. Neither seems to me valid in our society.
Although it’s been alluded to, it’s worth noting the wide variety of legal rights spouses have vis-a-vis each other. My wife Barb is my legal next of kin; she has absolute right to at least a large portion of my estate (this varies from state to state); she may consent to medical treatment which I may need if I am incapable of doing so; she may act in my behalf at least in certain circumstances without formal power of attorney in some jurisdictions; no one is in position to contest my will leaving my entire estate to her. Whatever powers she has with regard to me in North Carolina will be automatically honored in other states, and are constitutionally protected under Article IV. Now consider Fred and Ed, who love each other and have formed a civil union. None of these rights is valid in 49 states. When Fred gets into a severe accident and is comatose, his mother or brother becomes next of kin. When he dies while they’re attempting to contact them, Ma and Bro contest his will leaving everything to Ed, and end up having Ed thrown out of the house they owned together.
Obviously God hates Ed for being gay, and the courts need to enforce this. :rolleyes: