Well that’s the most asinine thing I’ve ever read.
How are they different?
Esprix
Everyone interperets the law as this- not allowing gays to have sex with each other, but letting heterosexuals have it sex as they please. If you look at it that way, it would violate equal protection. But if you look at it in another light, you could view it as it prohibits ALL people from having sex with a member of the same gender. No one is excluded from this law- the law applies to everyone. They would not be in violation of the equal protection clause. As far as SDP, most of us would say this is in violation of it, though.
I am against this law 100%, I’m just stirring up some opposition.
This is not a rebuttal remarkable for its cogency.
It does, I admit, have the benefit of brevity. But the fact remains that you cannot assert, without citation to authority, that a particular thing is “a basic human right.” A gratuitous assertion may be equally gratuitously denied. If you say it’s a basic human right, and I say it isn’t, how shall we determine which of us is in error?
How are they different?
[/QUOTE]
The prohibition against sodomy affects all persons. The prohibition against interracial marriage affects only those of certain races, a distinction which is impermissible.
- Rick
A prohibition against interracial marriage also affects all persons.
If you’re going to argue that it only affects some “races”, you’re missing the fact that if they want to marry members of supposedly unaffected groups, those members of unaffected groups are suddenly affected.
The Texas law cannot be interpreted in “another light”, because here’s what it says (the Penal Code):
Some states have generally applicable anti-sodomy laws, but Texas isn’t one of them.
Yes Mighty Maximino, but you could very well say that the law prohibits everyone from having sex with a member of their respective sex. I see it would be unfair to say, “Gays cannot have sex” or “Men cannot have sex with men”, or “Black people cannot have sex with blacks of their respective sex”.
Gay men aren’t prohibited from having sex at all. Just with men, and the same applies for every man. The same with women on women.
That’s essentially the point that I was trying to make but my argument got labeled specious and sophist.
I am also opposed to the law but since I am no longer a resident of Texas, I don’t feel that it’s my place to tell my neighbors to the south what laws they can and cannot pass. But if I did still live in Texas and decided that one day I wanted to take a walk on the wildside with another man, I would do it with the knowledge that it was illegal for me, gay or straight.
Yes, this is true. But the fact remains that the law created two classes of people, “white” and “colored” persons, and forbid marriages based on those classes. This was an impermissible distinction. The prohibition against sodomy, however, does not create classes of people: it merely forbids the practice of sodomy to all persons.
- Rick
One of the laws in question – cited above – explicitly divides people up into classes, based on sex, which is an impermissible distinction.
I can have sex of whatever sort I want with a consenting man.
Why should a man not be able to have sex of whatever sort he wants with a consenting man?
I think the whole “everyone is equally prohibited from consensual activities with members of the same sex” argument is therefore specious. If I can have sex with a consenting man without breaking any laws, anyone should be able to have sex with a consenting man without breaking any laws.
That’s like saying that laws against practicing Judaism affect Jews and Christians equally. Jews are free to practice any religion they want, so long as that religion is not Judaism.
The idea I’m defending is the right of a state to outlaw sodomy. I don’t support the right of Texas to prohibit male-on-male sexual contact. So if you can legally have any sort of sex with a consenting man, then I agree that a man should also legally be able to have sex of any sort with a man.
I don’t think it’s such a good idea for a state to do it, of course, but I believe there is nothing in the federal constitution that confers a right to commit sodomy. So if a state wishes to pass such a law, they may.
- Rick
Bricker, is there anything which explicitly states that walking is a guaranteed right? How about sleeping on a couch instead of a bed? Can a state just arbitrarily prohibit any innocuous behavior whatever which is not expressly guaranteed by federal law?
Splanky and KRM, I really don’t think your theory about the law being equally applied is very convincing. As Lilairen pointed out, you are basically saying that a person must possess a specific gender status in order to blow a guy.
I’ve been playing along with this thread for a while, but I have to say, I can’t even believe we’re having a debate about whether consenting adults should be prohibited from having sex in private. I don’t think anyone in this thread actually thinks the law is good or right, you’re just stringing the argument along for its pure legal theory, but let’s leave the legalities aside for a second.
Doesn’t this law just strike you as wrong? Never mind if it’s legal, isn’t it just plain disheartening that we have a state that wants a law like this? 
I don’t think anyone would argue with me on this, I just wanted to express it.
Sure it strikes me as wrong, but you can’t throw away the Constitution because you don’t like the result.
Bricker’s entire point was that, if sexual relations are not a right guaranteed under the Constitution (which is a debatable position), then it is up to the States individually to decide what should be legal and what should be illegal. It shouldn’t be up to the federal government to decide. And the basic tenets of federalism should not be dismissed as “pure legal theory” because they have a great deal of relevance and thought behind them. But it’s intriguing that you know better than everyone else in your State.
I don’t think anyone’s mentioned this yet, but I’ve heard that the heterosexual version of these laws is generally used for prosecuting prostitutes and johns.
Diogenes the Cynic , you have found something that we can agree on. As a staunch Libertarian, I find this law abominable. If I still lived in Texas, I would actively support any (well, almost any) candidate for public office that would work to repeal it.
However, regarding Lilairen’s point that the law divides people into classes of people of those that can have sex with men and those that can’t, I see the point. I also think it is equally valid to say that everyone in Texas belongs to the class of people that can’t have same sex sex.
Blalron , if Oklahoma was to pass a law making it illegal to eat pork (God forbid), I wouldn’t feel that the law discriminated against me because there were Orthodox Jews that were not effected by it.
Hamlet, I don’t think it would violate states rights or create law for the SCOTUS to simply overturn the law on equal protection ground, without considering the other questions. I think this is most likely what will happen.
Hypothetically, could it be feasible to pass a constitutional amendment which WOULD guarantee a fundamental right for consenting adults to have sex? I realize that there is virtually no chance that congress (especially THIS congress) would ever initiate or support such amendment, I just want to know if it would be a legally legitimate way to wipe out these kinds of state laws.
It seems that there are two ways of looking at laws;
-prohibition of certain activities
-enablement or granting of rights
I believe that things should be arranged so that anything that is not prohibited is allowed by default; people would therefore have the automatic right to have sex in whatever way they want unless there was a specific law against it (for example there would be a law specifically dealing with minors). Then it’s not so much a case of the law having to defend, uphold or guarantee rights, but rather the law would simply not bother to interfere where it was not needed.
If an individual tried to intervene and prevent (for example) two consenting adults from having sex in a non-illegal context, the law would view the individual as having infringed privacy statutes, or disturbing the peace or some such - quite a separate issue.
True. But in distinguishing between, say, walking and sodomy, the Court would likely look to the history of the law across the country, as the Bowers court did, and detremine that walking has always been permitted; no state has ever so much as considered a general ban against it, and it’s thus rooted in our common law and tradition that walking around cannot be criminalized.
Sodomy, on the other hand, has been criminalized since ancient times. It was a common-law criminal offense. It was forbidden by the laws of the original thirteen states at the time those states ratified the Bill of Rights. In 1868, when the Fourteenth Amendment made the Bill of Rights applicable to the states, thirty-two of thirty-seven states criminalized sodomy. In 1960, all fifty states did so.
That’s not what we’re having the debate about. The debate is, at least from my corner, about whether there is a federal constitutional right for consenting adults to engage in sodomy, such that no state may legally prohibit that conduct.
Yes, it strikes me as wrong, but not shock-the-conscience, unbelievably-evil type wrong. It’s just a poor exercise of legal power, over an area that the state has no real reason to get involved. If I were a state legislator, I would propose a repeal to anti-sodomy laws in my state; if I were governor, I would sign such a bill.
But if I were a federal judge, I would NOT rule that the federal Constitution prohibits such a law’s existence, because it doesn’t.
THAT is what this debate’s about.
As least from my corner.
- Rick
And as an addendum: I’m talking about generic anti-sodomy laws, not laws that forbid same-sex contact while permitting the identical conduct between opposite-sex couples. The Texas law, I agree, should be dismissed under an Equal Protection analysis, and the court thus has no reason to reach the constitutionality of anti-sodomy laws, which it resolved anyway back in Bowers.
- Rick
Sorry it took so long to reply, but this needed a response.
the first part,
They really dont, that is why the law will most likely be destroyed. Im sure there are parts of the country where this type of legislation would be embraced. Those poeple have the right to their backwards views just as homosexuals have the right to theirs. Im saying that each state should be allowed to make a distinction as to who is right and who isnt. That is, untill something on a federal level is in place to clear things up.
the second part regarding slavery,
I have stated numerous times that any law would have to stand up to the courts and the constitution. These devices are in place to protect us against such foolishness.
Thankyou.