# Supreme Court hears challenge to Texas Sodomy Ban **URL:** \ **Category:** Great Debates\ **Created:** [March 26, 2003, 9:03pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368 "2003-03-26T21:03:59Z")\ **Posts on this page:** 20\ **Page:** 11
**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:** [April 3, 2003, 1:27pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/201 "2003-04-03T13:27:24Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*So if everyone in the US agrees that Mexicans should be prohibited from speaking Spanish, would Mexico refusing to comply constitute a violation of North America’s right to “self-govern”? \*\* This question is almost stupid beyond belief. There were more people in Britain than there were in the colonies; the issue over which a war was fought was the lack of representation accorded to the colonies. Same deal here – Mexican citizens would lack representation on such decisions made by the US alone. Unless we make Mexico the 51st state your argument is stupid. \*\* > [@](#): > > I also find it odd that you claim that such a vague term as “privacy” can be summed up in one sentence, while the concept of personal freedom is somehow so complicated as to defy description. \*\* Who said I thought a concept of personal freedom was “complicated”? I just said it wasn’t in the constitution, outside of the very specific search and seizure provisions. \*\* > [@](#): > > Creating an amendment that can be used to protect privacy is a far cry from an amendment that will be used to protect privacy.\*\* So? You can say this about any amendment. Consider: “Creating an amendment that can be used to protect free speech is a far cry from an amendment that will be used to free speech.” \*\* > [@](#): > > Your proposed amendment would simultaneously both fail to ensure that valid violations of privacy will be prevented and allow a huge array of invalid uses. I don’t see how that’s a good thing. \*\* Your point, if you have one, escapes me. The judiciary would certainly define the scope of “privacy,” just as they define the scope of “free speech.” To which “invalid uses” would this amendment be put that the interpretation you favor of the constitutional status quo does not? What “valid violations” would it not protect that the status quo interpretation does not? \*\* > [@](#): > > There are already clauses to “hang your hat” for most decisions. Take abortion, for instance. “The right of the people to be secure in their persons… against unreasonable seizures…”. Prohibiting abortion can be seen as an unreasonable seizure of the uterus. \*\* Even the Brennan court didn’t say this. The state isn’t taking anything, unless you’re prepared to say that anything the state says you may not do with your body is a seizure. Is the prohibition on prostitution a seizure of the vagina? \*\* > [@](#): > > Or “nor be deprived life, liberty, or property, without due process of law”. Prohibiting abortion can be seen as depriving someone of liberty and property (or even life, if there are medical reasons for the abortion). \*\* The constitution does not prohibit deprivations of life, liberty or property; it just requires that sufficient process be accorded the deprivee before it does so. Unless you’re going to argue in favor of notions of “substantive due process” – the problems with which have already been extensively discussed in this thread – the language you cite is a simple guarantee of adequate procedural fairness. \*\* > [@](#): > > Or “nor shall private property be taken for public use without just compensation”; “nor cruel and unusual punishment inflicted”; or “Neither slavery nor involuntary servitude…”. \*\* 1. The uterus isn’t being taken for public use. Hell, it isn’t even being taken. And even if it was, the language you cite would just require that the state pay for the privilege of doing so. 2. You’re seriously comparing pregnancy to slavery? :rolleyes: \*\* > [@](#): > > Again, disagreement does not constitute invalidation. Perhaps you really believe in this nihilistic point of view, but the vast majority of people agree that there is such a thing as fairness, even if they don’t agree what it is. \*\* This doesn’t answer the question asked. Again: several posters have suggested that a “right to smoke pot” would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn’t that a valid argument? \*\* > [@](#): > > And yet people speak freely of the state having the “right” to do this or that, rather than simply being constitutionally empowered to do so. \*\* The term “right” is frequently abused, true. That doesn’t change the fact that statutes are invalidated for constitutional infirmity, not for metaphysical unfairness. \*\* > [@](#): > > Because there’s a world of difference between “may” and “must”. \*\* So you’re saying the 19th amendment was wholly unnecessary, and that the suffragettes should have just accomplished their goals by litigation? Would’ve been news to them. \*\* > [@](#): > > I’m no mind reader, but I suspect that that Homebrew’s reaction to having a law prohibiting his sexual activites being compared to a minimum wage law would be… unpleasant. > “I’m not allowed to have sex with my lover” > “Oh yeah? Well, some states have instituted economic policies which I don’t agree with”. > Sorry, just don’t see how these are even in the same league.\*\* Well, I’d say the ability to earn a living – including the ability to underbid my competitors in the labor market – is pretty damned important. But that’s beside the point really. The point is that I decry judicial abuses even when they are put to ends with which I happen to agree. Hell, I think the Texas law should go the way of the dinosaur. I agree that it is dumb, stupid, and wrong. I just don’t think it’s unconstitutional, and thus it should be removed via the ordinary political process. \*\* > [@](#): > > So summarize: the purpose of government is to secure rights. Not to make policy decisions, not to engage in social engineering, not to govern for the sake of governing, not to provide a forum in people can get together and decide what they think everyone else should do, but to secure rights. And when those rights are violated, the people have the right to alter or abolish it. You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it. And I certainly don’t give my consent to a government with a blank check. \*\* The key, of course, is that “the people” have the right to alter or abolish it – not some small cabal of judges, but the people themselves. That’s why the constitution can be amended. That’s why judicial usurpations of the people’s power are wrong. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [April 3, 2003, 2:36pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/202 "2003-04-03T14:36:57Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*Democracy means that the people can tell the **government** what to do, not that they get to tell the **people** what to do. > > [snip] > > You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it.\*\* What a strange world I find myself in when I stand firmly beside **The Ryan**. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [April 6, 2003, 9:23pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/203 "2003-04-06T21:23:55Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > This question is almost stupid beyond belief. There were more people in Britain than there were in the colonies; the issue over which a war was fought was the lack of representation accorded to the colonies. Same deal here – Mexican citizens would lack representation on such decisions made by the US alone. Unless we make Mexico the 51st state your argument is stupid. I don’t see what Britain has to do with it, and as for Mexicans being represented, that was already taken into account. Since the US has so many people more than Mexico, allowing Mexicans to vote wouldn’t change the outcome (keeping in mind the premise of the hypothetical, namely that the people of the US are unaminously opposed to Mexicans speaking Spanish). > [@](#): > > Who said I thought a concept of personal freedom was “complicated”? I just said it wasn’t in the constitution, outside of the very specific search and seizure provisions. I recall you making statements such as “Starting from a ‘base of freedom’ is meaningless drivel that can mean anything to anybody” which implied a belief that any amendment guaranteeing freedom would be unworkably vague. > [@](#): > > So? You can say this [can is a far cry from will] about any amendment. No, for instance quartering troops in peacetime without the owner’s consent is clearly prohibited by the 3rd amendment. While the SCOTUS could theoretically ignore the 3rd amendent, they could not have any honest interpretation of it which would allow quartering troops in peacetime without the owner’s consent. Your amendment, however, admits perfectly honest interpretations which fail to protect human rights. > [@](#): > > Your point, if you have one, escapes me. My point is that your amendment is neither broad enough to include everything that it should, nor narrow enough to exclude everything it should. > [@](#): > > To which “invalid uses” would this amendment be put that the interpretation you favor of the constitutional status quo does not? What “valid violations” would it not protect that the status quo interpretation does not? Answering those questions would require me reading the minds of the judiacary. Furthermore, by “valid violations” I was referring to violations that are **not** protected by the status quo, and would continue to be not protected. > [@](#): > > Even the Brennan court didn’t say this. You seem to have lost track of what the claim is. The claim is that most, if not all, court decisions have something in the constitution which they can “hang their hat” on. Whether the courts actually make use of these “hatracks” (to extend the etaphor) is beside the point. > [@](#): > > The state isn’t taking anything, unless you’re prepared to say that anything the state says you may not do with your body is a seizure. Well, first of all, prohibiting abortion is not simply prohibiting a person from doing something, but is also forcing them to do something (carrying the fetus to term). Secondly, I think that it rather clear that at least **some** things that the state says that you may not do with your body is seizure. For instance, if the state says that you may not remove your body from the jail cell, wouldn’t that be considered seizure? [quote] Is the prohibition on prostitution a seizure of the vagina? [/quiote] It certainly is a “hatrack”. > [@](#): > > The constitution does not prohibit deprivations of life, liberty or property; it just requires that sufficient process be accorded the deprivee before it does so. Unless you’re going to argue in favor of notions of “substantive due process” – the problems with which have already been extensively discussed in this thread – the language you cite is a simple guarantee of adequate procedural fairness. Unless we are discussing a case in which a woman is issued an injunction not to abort, I don’t see how she has had **any** process, due or otherwise. And remember, to be a “hatrack”, there is no need to be free of problems. > [@](#): > > The uterus isn’t being taken for public use. Hell, it isn’t even being taken. And even if it was, the language you cite would just require that the state pay for the privilege of doing so. 1. There is no way in which society benefits from having more members? 2. It isn’t being taken in the sense of being moved, but it is being taken in the sense of being made use of. 3. Have you ever heard of a state offering to compensate a woman for bringing a child to term? 4. Remember, I’m just presenting a “hatrack”, not an ironclad legal argument. > [@](#): > > 1. You’re seriously comparing pregnancy to slavery? :rolleyes: Where did I ever do that? > [@](#): > > This doesn’t answer the question asked. Again: several posters have suggested that a “right to smoke pot” would be a ridiculous assertion of due process rights. But why? If due process means metaphysical fairness, why isn’t that a valid argument? If we start with the premises that laws against marijuana are unfair, and that due process means metaphysical fairness not only of the process, but of the law behind it, then I think it would follow that laws against marijuana are generally unconstitutional. > [@](#): > > So you’re saying the 19th amendment was wholly unnecessary, and that the suffragettes should have just accomplished their goals by litigation? Huh? How did you get that? What I’m saying is that without the 19th amendent, the suffragettes **may** have been able to get the courts to declare male-only suffrage to be unconstitutional. With it, the courts **must** declare it unconstitutional. Clearly the latter better supports their cause. Failing to promote an amendment because litigation **might** work is like not warming up before a match because the referee **might** disqualify the other team. > [@](#): > > The point is that I decry judicial abuses even when they are put to ends with which I happen to agree. I do too. However, I find it difficult to believe that had you been a slave two hundred year ago, and some activist on the Supreme Court had invented some reason why slavery was unconstitutional, you would be able to summon up much indignation. > [@](#): > > The key, of course, is that “the people” have the right to alter or abolish it – not some small cabal of judges, but the people themselves. Aren’t judges members of the set “people”? Do judges not have freedom of assembly, because that is reserved for the people as a whole, not to anyone individually? ---
**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:** [April 7, 2003, 5:49am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/204 "2003-04-07T05:49:22Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*I don’t see what Britain has to do with it, and as for Mexicans being represented, that was already taken into account. Since the US has so many people more than Mexico, allowing Mexicans to vote wouldn’t change the outcome (keeping in mind the premise of the hypothetical, namely that the people of the US are unaminously opposed to Mexicans speaking Spanish). \*\* Allowing the colonists to vote probably wouldn’t change the outcome, either – Britain had a lot more people than the colonies, so what would stop them from taxing the colonies with impunity? Again, the issue is representation. Mexico is not the 51st state. Congress has no power to dictate policy to them because they are not represented in any fashion in the American government. \*\* > [@](#): > > I recall you making statements such as “Starting from a ‘base of freedom’ is meaningless drivel that can mean anything to anybody” which implied a belief that any amendment guaranteeing freedom would be unworkably vague. \*\* My point about meaningless drivel was directed towards a comment attempting to justify judicial reworkings of the constitution on a nontextual basis. Using a word like “freedom” or “justice” as a _justification_ for your position is beyond meaningless. \*\* > [@](#): > > Your amendment, however, admits perfectly honest interpretations which fail to protect human rights.\*\* Such as? \*\* > [@](#): > > My point is that your amendment is neither broad enough to include everything that it should, nor narrow enough to exclude everything it should. \*\* Such as?\*\* > [@](#): > > Answering those questions [To which “invalid uses” would this amendment be put that the interpretation you favor of the constitutional status quo does not? What “valid violations” would it not protect that the status quo interpretation does not?] would require me reading the minds of the judiacary. Furthermore, by “valid violations” I was referring to violations that are **not** protected by the status quo, and would continue to be not protected.\*\* Again I ask: such as? You keep saying that the proposed language suffers from these serious defects, but never bother to posit even a single example of a defect in action. \*\* > [@](#): > > You seem to have lost track of what the claim is. The claim is that most, if not all, court decisions have something in the constitution which they can “hang their hat” on. Whether the courts actually make use of these “hatracks” (to extend the etaphor) is beside the point. \*\* You claimed that the abortion right was premised on the notion that failing to permit abortions was a “seizure” within the meaning of the fourth amendment. That is patently _not_ the basis for the court’s decision. The court did not say abortion was a right based in the text of the fourth amendment; they said the fourth amendment was an example of a broader “right to privacy” found in the “emanations and penumbras” of the constitution (as per the _Griswold_ birth control case), and that abortion was protected as a function of this broader right. Incidentally, when I say the court should have some textual basis to “hang their hat on,” I’m including an assumption that that basis will be reasonable in its reading – that it isn’t based on redefining words willy-nilly or bootstrapping of the sort found in _Griswold_. Playing the constitutional equivelant of the six-degrees-of-Kevin-Bacon game in finding a textual hook does not make that hook valid. \*\* > [@](#): > > Well, first of all, prohibiting abortion is not simply prohibiting a person from doing something, but is also forcing them to do something (carrying the fetus to term). \*\* This is worse than Orwellian doublespeak. The government is not seizing a goddamn thing, any more than it is seizing a woman’s vagina when it says she cannot rent that organ out for money.\*\* > [@](#): > > Secondly, I think that it rather clear that at least some things that the state says that you may not do with your body is seizure. For instance, if the state says that you may not remove your body from the jail cell, wouldn’t that be considered seizure? \*\* This is becoming increasingly absurd. Under this line of reasoning, any act prohibited by the government is a “seizure” and thus must be unconstitutional. The government says I can’t run through the park naked – a seizure? Are all public nudity laws unconstitutional? \*\* > [@](#): > > Unless we are discussing a case in which a woman is issued an injunction not to abort, I don’t see how she has had any process, due or otherwise. \*\* Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act. If you are speeding, due process issues do not arise until you are charged with speeding. \*\* > [@](#): > > 1. There is no way in which society benefits from having more members? > 2. It isn’t being taken in the sense of being moved, but it is being taken in the sense of being made use of. > 3. Have you ever heard of a state offering to compensate a woman for bringing a child to term? > 4. Remember, I’m just presenting a “hatrack”, not an ironclad legal argument. \*\* You’re just being stupid. A fetus is not taken for “public use” when it is brought to term. Period. As swell a guy as I am, I do not count my birth as some tremendous benefit to the commonweal. Most people with a reasonable command of the English language understand that much. \*\* > [@](#): > > Where did I ever do that [compare pregnancy to slavery]?\*\* When you suggested that the 13th amendment would operate to require abortion’s legality. \*\* > [@](#): > > If we start with the premises that laws against marijuana are unfair, and that due process means metaphysical fairness not only of the process, but of the law behind it, then I think it would follow that laws against marijuana are generally unconstitutional.\*\* Thank you for illustrating why I think substantive due process is lousy constitutional theory: it can mean anything to anybody, and can ultimately be used to strike down any policy choice a given judge disagrees with. _See, e.g.,_, basically everything I’ve written in this thread. \*\* > [@](#): > > Huh? How did you get that? What I’m saying is that without the 19th amendent, the suffragettes may have been able to get the courts to declare male-only suffrage to be unconstitutional. With it, the courts must declare it unconstitutional. Clearly the latter better supports their cause. Failing to promote an amendment because litigation might work is like not warming up before a match because the referee might disqualify the other team.\*\* You miss the point. Why take all the time and efforts – literally years of work of extensive politicking and lobbying – to give women the franchise when a lawsuit could do it in a fraction of the time and with considerably less effort? Why not try the easier route first, and then only if it fails go the amendment route? \*\* > [@](#): > > I do too. However, I find it difficult to believe that had you been a slave two hundred year ago, and some activist on the Supreme Court had invented some reason why slavery was unconstitutional, you would be able to summon up much indignation.\*\* Oddly, the constitutional theory you favor was actually used to _forbid_ the federal government from making federal territories and new states into areas without slavery. But I would decry a pre-13th amendment attempt by the judiciary to find slavery unconstitutional as fiercely as any other form of activism. The simple, tragic fact is, the constitution recognized the existence of slavery (see, e.g., the 3/5 compromise) and did not forbid it (neither, I hasten to add did it _require_ slavery to exist). The constitution was simply silent on the issue. It is foolish and wilfully ignorant to pretend otherwise. Thus, the appropriate thing to do in that era was to work to pass legislation forbidding slavery, and to pass the 13th amendment. (PS – the “if you were a slave” bit is a stupid emotional appeal; having cancer does not make you an oncologist, and being a slave does not make you an expert on constitutional law.) \*\* > [@](#): > > Aren’t judges members of the set “people”? Do judges not have freedom of assembly, because that is reserved for the people as a whole, not to anyone individually? \*\* Judges are a part of “the people,” and nothing I’ve said diminishes their ability to vote for the candidates of their choosing and otherwise participate in the political process (subject to the limits of judicial ethics, of course). But when “the people” is used in the fashion described, it means the whole of the people, not some small subset thereof. It is the general body politic that has the rightful power to “alter or abolish” the current form of government, not some tiny insular portion thereof. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 7, 2003, 8:23am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/205 "2003-04-07T08:23:54Z")
Dewey, do you think there’s any such thing as a right to bodily integrity within the framework of the constitution? For example, lets say the state wanted to castrate you for its eugenics program. What’s to stop them? If Due Process only means Due Procedure, that means that as long as a legal procedure is set up to deprive you something, they can deprive you of anything they so choose, including your testicles. ---
**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:** [April 7, 2003, 2:36pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/206 "2003-04-07T14:36:01Z")
> [@](#): > > \*Originally posted by Blalron \* > **Dewey, do you think there’s any such thing as a right to bodily integrity within the framework of the constitution?** No, there is not. This does not mean that a right to bodily integrity isn’t a good thing, or that one’s bodily integrity shouldn’t be respected by the government as a matter of policy. It just means the constitution (outside of the specific area of searches and seizures) is silent on the issue. \*\* > [@](#): > > For example, lets say the state wanted to castrate you for its eugenics program. What’s to stop them? If Due Process only means Due Procedure, that means that as long as a legal procedure is set up to deprive you something, they can deprive you of anything they so choose, including your testicles. \*\* Well, there is the fifth amendment’s takings clause – they’d have to give you just compensation. 🙂 Interestingly, as a purely technical matter a state could do this even under existing law. The Supreme Court in [_Buck v. Bell_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=274&invol=200) explicitly made eugenics programs constitutionally acceptable (the case gives Justice Holmes his infamous quip: “three generations of imbeciles are enough”). A later case, [_Skinner v. Oklahoma_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=316&invol=535), struck down a law requiring sterilization for certain criminal acts on equal protection grounds, but it does not reverse _Bell_ (indeed, it goes out of its way to distinguish its facts from _Bell_). Having said all that, I have little doubt that a court would today render such a law unconstitutional on one ground or another. As for me, I think the constitution is silent on the issue. This does not mean I favor that kind of policy – quite the opposite. I would invest considerable energy in kicking out of office any legislator who advocated such a program. And I think that would be effective – it’s hard to defend to the electorate support for a program carrying the Nazi seal of approval. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 7, 2003, 7:18pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/207 "2003-04-07T19:18:29Z")
**Dewey** , granting for the sake of argument your stance on “guaranteed rights,” IYO what are the meanings of: [list=A][li]an establishment of religion[/li][li]the freedom of speech (in the sense of what Congress may not abridge}[/li][li]the freedom of the press (in the same sense)[/li][li]the right of the people peacably to assemble[/li][li]the right of the people to petition the Government for a redress of grievances[/li][li]the right of the people to keep and bear arms[/li][li]the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seraches and seizures[/li][li]the right of a person not to for the same offense to be twice put in jeopardy of life or limb[/li][li]the right of a person not to be compelled in any criminal case to be a witness against himself[/li][li]the right to a speedy and public trial[/li][li]the right to be informed of the nature and cause of any accusation[/li][li]the right to be confronted with witnesses against one[/li][li]the right to have compulsory process for obtaining witnesses in his favor[/li][li]the right to have the assistance of counsel for one’s defense[/li][li]the right to a jury trial[/li][li]the right not to be required to post excessive bail[/li][li]the right not to be mulched excessive fines[/li][li]the right not to be inflicted with cruel and unusual punishment[/li][li]the privileges and immunities of citizens of the United States[/li][li]the right to due process of law[/li][li]the right not to be deprived of life, liberty, or property without due process of law[/li][li]the right to equal protection of the laws[/li][/list] More particularly, how does one arrive at a definition of those rights without judicial interpretation? And if one grants judicial interpretation, how does one define what is reasonable and unreasonable interpretation? I’m frankly annoyed – not at your taking a stance contrary to mine; I relish exchanging viewpoints and learning more of how others see things – but rather at a rather nebulous stance that I am seeing in your posts that there is no middle ground between textual literalism (but with a presumption in favor of the legislature that the broad-brush definitions of rights are not being infringed on by laws that seem to some to be strongly infringing on them) and a Devil-take-the-hindmost let’s-write-my-personal-feelings-into-the-Constitution judicial activism of the worst sort. I state this frankly in the hope that you will clarify things so that I may better understand where it is that you are coming from in these discussions. W/R/T the OP, there is nothing more evident in my mind than that the Texas law precludes behaviors to half the population that it permits to the other half, i.e.: [ul][li]no male may commit fellatio[/li][li]no female may commit cunnilingus[/li][li]no male may have anal intercourse with another male[/ul]but[ul]any female may commit fellatio[/li][li]any male may commit cunnilingus[/li][li]any male may have anal intercourse with a female[/ul][/li]Now, granted that it is probable that a heterosexual male would not wish to commit the first and third items on the first list, and a heterosexual female the second, that presumption need not come into the legal analysis. In point of fact, all males in Texas (and three other states) are being legally prohibited from committing acts that females can, and vice versa. In my mind, that is a clear violation of the equal protection clause. I personally feel that there is a right to privacy implicit in the Fourth Amendment’s terms but not spelled out beyond prohibiting unreasonable searches and seizures, and that the Ninth exists (though I’m aware you disagree) in part to protect that right. ---
**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:** [April 7, 2003, 8:27pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/208 "2003-04-07T20:27:06Z")
My word, **Poly** – just because I’m currently unemployed [1] doesn’t mean I have the time to write a full-length treatise on the constitution. Give me a break. Suffice it to say that I find substantive due process to be a constitutional theory with dubious merit at best, and that constitutional theories that require “emanations and penumbras” to form their constitutional basis are by definition absurdly far removed from the text. I also take issue with your “no middle ground” characterization. I’ve stated repeatedly that there is an interpretive function legitimately served when the judiciary must define key constitutional terms (e.g., what is or is not a “search;” what specific procedural safeguards are “due”). I think that they cross a line when they ascribe facially nonsensical definitions to constitutional terms (e.g., “due process” means metaphysical substantive fairness rather than a simple right to be heard). Just because there is play in the constitutional joints does not mean anything goes. If you want to discuss a specific example or case or constitutional provision, fine, but I’m just not going to do a comprehensive _magnum opus_ here. As for the gender-based EP argument and the OP: if you’ll peruse this thread, you’ll find that I’ve stated this is the only argument that has any possible merit, though I think it is not without flaws. I think I’ve covered the fourth amendment, and God knows I’ve hashed through the ninth amendment. Unless you’re going to add a legitmately new line of argument on those topics, I’d just as soon point you to my prior posts as my response. 1. As I was composing this, I got an email about an interview Thursday. Wish me luck. ---
**Author:** ![The\_Scrivener](https://avatars.discourse-cdn.com/v4/letter/t/eada6e/32.png) [@The\_Scrivener](https://boards.straightdope.com/u/The_Scrivener)\ **Post date:** [April 7, 2003, 10:02pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/209 "2003-04-07T22:02:40Z")
On an utterly frivolous note, I wrote this [limerick](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172233&perpage=10&pagenumber=9) about _Bowers v. Hardwick_ in a “literary limericks” thread. 😃 ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 7, 2003, 11:33pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/210 "2003-04-07T23:33:32Z")
Fair enough, **Dewey**. That list of rights was more or less rhetorical, aimed at trying to get you to articulate your views on what the Constitutional extent and limitations on rights are. And that summary of what you’ve “stated repeatedly” is more or less what I was looking for. The comment was made over in GQ that “substantive due process,” insofar as it can be articulated, means, more or less, that the result must end up as an act of Constitutional justice as well as one that meets the requirements of procedure. E.g., a hypothetical state law that permitted everyone to say whatever they liked only in a given deserted stretch of desert, provided that nobody else was there, would meet due process as regards preserving freedom of speech, but would be substantively inequitable – freedom of speech implies freedom that one’s speech will be heard by those who are willing listeners, though that is sort of “penumbral.” Hypothetical for you: It’s 1986, and Justice Powell has suffered a stroke and retired, just before _Hardwick_ is to be decided. You know the facts behind the case, I presume --they’ve been reviewed here several times. (If not, I’ll be glad to do a summary.) President Reagan, casting about for a bright young conservative who will have a long stay on the court, has targeted you, and the Senate, not without some flack from Sen. Kennedy, has consented to your appointment. Now you’re faced with the _Hardwick_ case. How will you vote? What are the reasons behind that vote? And will your decision take into account the reason behind the suit in the first place? ---
**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:** [April 8, 2003, 12:31am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/211 "2003-04-08T00:31:38Z")
> [@](#): > > \*Originally posted by Polycarp \* > **E.g., a hypothetical state law that permitted everyone to say whatever they liked only in a given deserted stretch of desert, provided that nobody else was there, would meet due process as regards preserving freedom of speech, but would be substantively inequitable – freedom of speech implies freedom that one’s speech will be heard by those who are willing listeners, though that is sort of "penumbral."** Of course, the challenge to such a law would not need to trip due process arguments, substantive or otherwise. Putting aside full incorporation issues, all that is necessary to find such a law unconstitutional is the first amendment. One need not stretch to penumbras to find this law an abridgment of free speech. \*\* > [@](#): > > Hypothetical for you: It’s 1986, and Justice Powell has suffered a stroke and retired, just before _Hardwick_ is to be decided. You know the facts behind the case, I presume --they’ve been reviewed here several times. (If not, I’ll be glad to do a summary.) President Reagan, casting about for a bright young conservative who will have a long stay on the court, has targeted you, and the Senate, not without some flack from Sen. Kennedy, has consented to your appointment. Now you’re faced with the _Hardwick_ case. How will you vote? What are the reasons behind that vote? And will your decision take into account the reason behind the suit in the first place? \*\* I would find that although I find the Georgia law personally distasteful, the constitution is silent on the issue of government’s power to criminalize certain sexual practices and therefore the Georgia law is not unconstitutional. I would close with a quip from Oliver Wendell Holmes, Jr.: “If my fellow citizens want to go to Hell I will help them. It’s my job.” BTW, thanks for ruining any shot I may have had at appointment to a judgeship. I can picture Ted Kennedy reading this post, and it ain’t pretty. 🙂 ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 8, 2003, 1:19am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/212 "2003-04-08T01:19:51Z")
> [@](#): > > This does not mean that a right to bodily integrity isn’t a good thing, or that one’s bodily integrity shouldn’t be respected by the government as a matter of policy. It just means the constitution (outside of the specific area of searches and seizures) is silent on the issue. Forgive me if it offends your ideology of States Rights, but if my State wants to take my testicles, they aren’t going to do it without a prolonged and bitter court battle. 😉 ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 8, 2003, 1:24am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/213 "2003-04-08T01:24:40Z")
Unfortunately, you would be right on the money, thanks to the overambitious arguing stance Tribe undertook on the case. However, IMHO, the facts of the case are such as to provide a quite different view of the incident. Michael Hardwick was a bartender at the Cove, a former gay Atlanta nightclub. On the night of July 4, 1982, Hardwick spent the night installing insulation in an expansion of the Cove’s facilities, left in the morning, grabbing a beer as he left, which he finished and discarded just as he was observed by Keith Torrick of the Atlanta City P.D., who ticketed him for drinking in public. Torrick allegedly had a grudge against gays generally and Hardwick in particular. Torrick did warn Hardwick that he would be arrested if he failed to show up in court; Hardwick did show up, pay a $50 fine, and figured that ended the matter. Torrick then, on August 3, 1982, got a warrant for Hardwick’s arrest for failure to appear (he claimed he “mistakenly” thought Hardwick was a scofflaw) and proceeded to Hardwick’s house. According to the accepted story, a friend who was sleeping off a hangover on Hardwick’s living room couch let him in (a variant story says the front door was open). The friend said that he didn’t know whether Hardwick was home. Torrick proceeded through the house, pushing open a bedroom door to find Hardwick and a houseguest in town to look for work engaged in mutual fellatio. He placed them under arrest for committing the felony crime of sodomy, publicized the reason for their arrest to the prisoners at the jail. Hardwick posted bail within one hour but was not released for 12. Kathleen Wilde and John Sweet of the local ACLU chapter contacted Hardwick, who agreed to be a test case for the sodomy law’s constitutionality. However, Lewis Slaton, the D.A. who would have to prosecute the case, decided to drop the charges. Wilde and Sweet then filed in Hardwick’s behalf to sue Michael J. Bowers, Attorney General of Georgia, challenging the case. U.S. District Judge Frank Johnson addressed the issue of privacy head on: > [@](#): > > The Constitution prevents the states from unduly interfering in certain individual decisions critical to personal autonomy because those decisions are essentially private and beyond the legitimate reach of a civilized society… The intimate association protected against state interference does not exist in the marriage relationship alone… For some, the sexual activity in question here serves the same purpose as the intimacy of marriage. In sum, a police officer with an invalid arrest warrant enters a private home without the consent of the homeowner and observes conduct constituting a felony being engaged in in private. Regardless of whether Georgia’s sodomy law is constitutional, the entire circumstances surrounding the arrest and its consequences are a violent breach of Fourth Amendment rights as explicitly spelled out in previous cases. And there is some evidence that Torrick targeted Hardwick from the start. In short, while Torrick may have had valid grounds for making the arrest when he observed the 69 going on, he had no business being where he could make that observation – and Slaton knew that. Hence, while the ACLU and Tribe mounted the argument against the constitutionality of the Georgia law, the actual argument that ought to have been made was one of an unlawful entry by the police – which should ring a bell in connection with Lawrence v. Texas. > [@](#): > > BTW, thanks for ruining any shot I may have had at appointment to a judgeship. I can picture Ted Kennedy reading this post, and it ain’t pretty. Oh, don’t worry, **December** will handle your public relations! 😃 :: d & r ::: ---
**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:** [April 8, 2003, 2:11am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/214 "2003-04-08T02:11:10Z")
**Poly** : Oh, I agree on the fourth amendment point – indeed, earlier in this thread, I think I said the Texas case, were it being normally defended, would have been thrown out on improper search grounds. But that wasn’t the issue presented on appeal in either case. ---
**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:** [April 8, 2003, 2:14am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/215 "2003-04-08T02:14:35Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*Forgive me if it offends your ideology of States Rights, but if my State wants to take my testicles, they aren’t going to do it without a prolonged and bitter court battle. 😉 \*\* Actually, I agree – you have a right to due process, meaning that you must be given a full and fair opportunity to be heard before the state does anything to you. While I disagree with the doctrine of substantive due process, I don’t think we should ignore the due process clase altogether. And, more to the point, if the state wants to take _my_ testicles, they’re going to need a lot more than a prolonged legal battle. They’re going to need lots of men with guns. 😃 ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [April 9, 2003, 12:48am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/216 "2003-04-09T00:48:14Z")
DCU > [@](#): > > Allowing the colonists to vote probably wouldn’t change the outcome, either – Britain had a lot more people than the colonies, so what would stop them from taxing the colonies with impunity? I don’t see what your point is. This supports my position. > [@](#): > > Again, the issue is representation. No, it’s not. Even if the US allowed Mexico to vote on the issue, it still wouldn’t be justified. > [@](#): > > Again I ask: such as? You keep saying that the proposed language suffers from these serious defects, but never bother to posit even a single example of a defect in action. It should be quite of obvious that if the SCOTUS can find the right to abortion in the constitution without your amendment., it could find its absence with your amendment. > [@](#): > > You claimed that the abortion right was premised on the notion that failing to permit abortions was a “seizure” within the meaning of the fourth amendment. No, I said no such thing. > [@](#): > > This is worse than Orwellian doublespeak. The government is not seizing a goddamn thing, any more than it is seizing a woman’s vagina when it says she cannot rent that organ out for money. Is this the “deny really forcefully while making literary references” strategy? “This is worse than firemen that start fires rather than put them out. The government most definitely is seizing something.” Convincing? I didn’t think so. > [@](#): > > This is becoming increasingly absurd. Under this line of reasoning, any act prohibited by the government is a “seizure” and thus must be unconstitutional. If you wish to read that into the argument, then that is your choice. But arguing against something based on what you read into it is a rather odd strategy. You seem to arguing that since some things which the government prohibits are not seizure, then nothing is, which is clearly fallacious. > [@](#): > > Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act. “No person shall… be deprived of life, liberty, or property, without due process of law”. Doesn’t say “this issue does not arise until the government tries to penalize someone”. Are you saying that if the government wants to take $1000 as a fine for breaking the law, it must follow due process, but if it wants to take $1000 with absolutely no justification, no due process concerns arise? > [@](#): > > You’re just being stupid. And you’re violating forum rules. > [@](#): > > A fetus is not taken for “public use” when it is brought to term. I never said it was. But unless you’re disputing that in this context “taken for public use” means “used to provide a benefit against the owner’s consent”, the _uterus_ is taken for public use. > [@](#): > > As swell a guy as I am, I do not count my birth as some tremendous benefit to the commonweal. That’s a strawman. I never claimed that the public derives a “tremendous” benefit, only that it derives some benefit. If you honestly believe that your existence in no way benefits humankind, I’m not going to try to convince you otherwise, but the fact remains that _generally speaking_, the public derives benefits from additional members. > [@](#): > > When you suggested that the 13th amendment would operate to require abortion’s legality [you compared pregnancy to slavery]. I don’t see how. > [@](#): > > You miss the point. Why take all the time and efforts – literally years of work of extensive politicking and lobbying – to give women the franchise when a lawsuit could do it in a fraction of the time and with considerably less effort? Why not try the easier route first, and then only if it fails go the amendment route? Presumably the suffragettes thought that an amendment had a better chance than a lawsuit. But I don’t really know what their motivation was, nor is it relevant. Although, as long as we’re playing this game, why did the temperance movement go for an amendment? Why not just pass a law? > [@](#): > > But when “the people” is used in the fashion described, it means the whole of the people, not some small subset thereof. What is “the fashion described”? > [@](#): > > PS – the “if you were a slave” bit is a stupid emotional appeal; having cancer does not make you an oncologist, and being a slave does not make you an expert on constitutional law. You already said that (in fact, my statement was I response) and you’re not adding anything except uncalled for rudeness. It’s not an emotional appeal; it’s not even an appeal at all. > [@](#): > > It is the general body politic that has the rightful power to “alter or abolish” the current form of government, not some tiny insular portion thereof. So the colonists had no rightful power to abolish British rule? ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [April 9, 2003, 12:55am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/217 "2003-04-09T00:55:55Z")
The facts presented regarding the Hardwick case prompted some wondering on my part as to what constitutes consent to a search: If someone other than the owner gives consent, and the cops assume that the person giving consent is the owner, will the evidence tbe thrown out? Has anyone who was the owner and gave consent successfully argued that his mental state was such at the tie of the entry that he was not competent to give consent? (eg hung over, drunk, not fully awake, on painkillers) Once they have consent to enter the house, do they have to get separate consent to open closed doors? ---
**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:** [April 9, 2003, 1:31pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/218 "2003-04-09T13:31:39Z")
**The Ryan** – I started to do another line-by-line response, but then decided it just wasn’t worth the time. Your arguments are just plain nonsensical. I feel as though I’m at tea with the Mad Hatter and March Hare. And this isn’t the first time, either – you pretty much did the same thing in [the Patriot II thread](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=167336). If you want to have a serious, adult discussion, take notes from **minty** , **Blalron** and virtually every other participant in this thread. As much as I disagree with them on various points raised here, I respect them because they bring up substantive points with considerable merit. They do not spew out book-length posts of nonsense and expect to be taken seriously, a practice you evidently favor. ---
**Author:** ![The\_Ryan](https://avatars.discourse-cdn.com/v4/letter/t/7feea3/32.png) [@The\_Ryan](https://boards.straightdope.com/u/The_Ryan)\ **Post date:** [April 10, 2003, 4:02am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/219 "2003-04-10T04:02:29Z")
I’m open to respectful, cogent, specific and useful explanations for how my posting style can be improved. You have presented nothing of the sort. In your previous posts, you have used insulting language and directed many of your most extreme reactions to statements which I never made. “Your arguments are just plain nonsensical” is an only slightly more sophisticated response than the tactic of repeating “nuh-uh” after everything someone says. You have had plenty of opportunity to show **how** my arguments are nonsensical, and instead you have chosen to present blatant strawmen and non sequitors, then pretend that you have shown my arguments to be nonsensical. If by “same thing” you mean “present arguments which I ignored and instead argued against something else”, then your statement “you pretty much did the same thing in the Patriot II thread” is true. It’s also odd that you would complain about my post length. seeing as how not only do you have posts just as long, but you also earlier complained that my posts weren’t detailed enough. You think my arguments are nonsensical. I think yours are. Would you be convinced if I posted something like what you did? I think I’m safe in assuming that the answer is “no”. So do you think a post consisting of nothing more substantial than “You’re wrong; you’re not making sense; I’m right; you’re wrong” is going to convince me? And I haven’t found minty to be a good example of “serious, adult, discussion”, this thread notwithstanding. ---
**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:** [April 10, 2003, 5:43am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/220 "2003-04-10T05:43:56Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*And I haven’t found minty to be a good example of “serious, adult, discussion”, this thread notwithstanding. \*\* And this tells me all I need to know about how seriously I should take you. Look, I’ve played along with your posts for a full page in this thread, and longer in that other thread. It’s like herding cats – your arguments just all over the place. It’s ridiculous. A good example is your absurd Mexico example. Mexico is not part of the US political system. Mexican citizens have no representation or participation in the setting of US policy. That being the case, _of course_ the US cannot dictate an official language to the Mexican people. Most normal people understand this basic concept. You evidently do not. (I’ll also note that within the US, many states _do_ disallow the use of Spanish - and any language other than English - for various purposes. Although some specific aspects of those statutes have been successfully challenged, the statutes themselves have generally survived constitutional scrutiny. And that’s just fine – that’s democratic self-government in action. If you don’t like English-only laws, your proper remedy is at the ballot box, not the courthouse.) So you’ll excuse me if I don’t continue chasing you down the rabbit hole. After five pages of substantive discussion with folks like **minty** , **Polycarp** , **Blalron** , **mtgman** and others, I’m not terribly concerned that folks will think I’m dodging your argument. But you go ahead and believe whatever makes you feel better. [Previous page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=10) [Next page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=12)