# 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:** 14
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 17, 2003, 1:18am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/261 "2003-04-17T01:18:32Z")
Nice job, **TheRyan**! I have a few nitpicks, but I want to see what **Dewey** has to say in response before I raise any of them (if indeed any need to be raised). With reference to your last paragraph, I’m underwhelmed by the use of fascism to describe anything but the Spanish, Croatian, and Italian governments that formally espoused it – it becomes too much of a meaningless pejorative otherwise. Though I do see how the idea of an all-powerful state working hand-in-hand with big business in “public-private partnerships” approaches the real definition of the term. But may I offer “Statism” – the idea that the state’s powers are self-limited, that it can do anything that it chooses to do, and that its citizens (subjects might be a better choice) are required to comply with what it chooses. **Dewey** ’s arguments of late has been strongly Statist, albeit he does see the will of the majority as the basis from which the state derives its powers. **Jimmy1** , I read your analysis with interest and respect. But I have a question with regard to your perspective: how is it just to proscribe a given behavior to half the population while permitting it to the other half. Granted that only gay and bisexual people might want to engage in “deviate sexual intercourse” with a member of the same sex, it still means that every woman in Texas is proscribed from doing the exact same things that every man is permitted to do, and likewise for men. I have no particular interest in working at a day care. But if North Carolina declared that only women could be employed in day care facilities, I’ve lost a possible source of employment – and men now working in such facilities would be out of a job. I’m submitting that the idea is on all fours with sexual activities. In addition to which, there is a subtle bit of circular reasoning in your argument: Texas by law finds “deviate sexual intercourse” to be immoral, and this affords them the right to regulate it under intermediate scrutiny. In other words, we can pass this law because the behavior is immoral, and it’s immoral because the law we pass declares it to be. That sounds an awful lot like “If guns are outlawed, only outlaws will have guns” to me. Presuming whistling from my example above not to be protected speech, could the Texas Legislature declare whistling to be immoral in a law making it illegal? Would that stand up under intermediate scrutiny? ---
**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 17, 2003, 7:25am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/262 "2003-04-17T07:25:27Z")
> [@](#): > > \*Originally posted by Polycarp \* > Nice job, **TheRyan**! Thanks. It’s nice to know at least some people appreciate my contributions to this thread. > [@](#): > > With reference to your last paragraph, I’m underwhelmed by the use of fascism to describe anything but the Spanish, Croatian, and Italian governments that formally espoused it – it becomes too much of a meaningless pejorative otherwise. I agree that it has become a word used more for its connotations than its denotations, but I was using it to refer to the principle in Fascism that there is no source of morality beyond the state. However, I agree that it is considered to mean more than that. It’s hard to find a word that exactly matches what I mean. Your suggestion of “statism” is good, but I think that it is a bit weaker than what I am trying to convey. Perhaps among political scientists it has the meaning you ascibe to it, but to me it evokes more of a general approval of increased government control, not of absolute authority. I guess I would amend “fascism” to “totalitarianism”. This still implies more than I mean; it usually means that the government exercises total control, but I simply a referring to a philosophy that grants the **right** of total control, and does not necessitate the exercise thereof. I appreciate your emphasizing a point that I made earlier, that DCU seems to have missed a central point to the American Revolution: the principle that governments are instituted to secure rights. Anything further than that oversteps their purpose. Every time a bill comes up to a vote, legislators should ask themselves “Does this help secure rights?” If the answer is “No, but it promotes public morality!” then the legislators should, in my opinion, say “Well, that’s nice, but that’s not the purpose of government.” And trying to counter this by saying that people have the have a right-to-have-their-government-do-whatever-they-want-even-if-it’s-not-securing-rights, and so any instance of the-government-doing-something-for-a-purpose-other-than-securing-rights is in fact securing the right-to-have-one’s-government-do-things-for-reasons-other-than-securing-right, and is therefore securing rights, is bizarre. Seems to me that DCU simply created a “right” out of thin air. Yes, every right is a matter of opinion, but there are good reasons for the right to free speech or to bear arms. Where does this right to tell other people what to do come from? What rational basis is there for “Me and my buddy say you should do this, you say you shouldn’t, that’s two votes to one, so you should do it”? > [@](#): > > In addition to which, there is a subtle bit of circular reasoning in your argument: Texas by law finds “deviate sexual intercourse” to be immoral, and this affords them the right to regulate it under intermediate scrutiny. In other words, we can pass this law because the behavior is immoral, and it’s immoral because the law we pass declares it to be. Yeah, this bothers me too, and it shows up in other areas such as the definition of “cruel and unusual punishment” (it’s widely practiced because it’s constitutional, and it’s constitutional because it’s widely practiced, and therefore not unusual) and the definition of “obsecenity” (it’s illegal because it offends community standards, and we know it must offend community standards because it’s illegal). Seem like poorly disguised grandfather clauses to me. ---
**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 17, 2003, 1:33pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/263 "2003-04-17T13:33:19Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*The intent of the labor law was to improve people’s ability to provide for their families. \*\* Oh really? Tell that to the guy who loses his job because his employer cannot afford to keep him on payroll due to the mandated wage increase. Tell that to the guy who cannot make ends meet because of the mandated maximum hour requirement. \*\* > [@](#): > > The intent of the sex law was simply to make life harder for some people. \*\* I suspect the proponents of the law would argue its intent is to safeguard their particular notion of morality – that they see society galloping towards the cliffs of depravity and that laws such as this are needed to keep it from charging right off. That isn’t a view I share, or even a goal I find appropriate for government action, but I’d certainly bet the law’s proponents think their intentions are noble and just. Which is why looking to motives is stupid: everyone thinks their own motivations are virtuous. \*\* > [@](#): > > I find it quite reasonable to believe that laws based on good intentions are better than laws based on pure malice.\*\* What was it the road to Hell was paved with again? \*\* > [@](#): > > This is the Great Debates Forum, not the Poetry Forum. If you’re going to chide others for claiming some higher source of rights, then it’s rather hypocritical to do so yourself, even poetically.\*\* :rolleyes: \*\* > [@](#): > > I really don’t see how you get from the idea that a government derives its powers from the consent of the governed to the idea that **restrictions** on the government derive only from the consent of the governed.\*\* Because they do – simple observation tells me so. The Bill of Rights did not descend from on high; it was written by men and passed into law via democratic means. \*\* > [@](#): > > Here’s an analogy: suppose I join a homeowner’s association. If the HOA agreements says that it can regulate lawns, it can regulate lawns. If it says it can regulate roofs, it can regulate roofs. The HOA derives its power from the HOA agreement. Does that mean that every restriction on the power of the HOA must come from the HOA agreement? If the HOA says that it has the right to tell me what to wear, and I say that it doesn’t, must I find a clause in the HOA agreement saying that it doesn’t have the right to tell me what to wear?\*\* I suspect most HOA’s will have in an early clause a statement to the effect that their purpose is limited to things dealing with the physical upkeep of the properties within the association. Absent that, yeah, they could tell you what to wear. And why would you complain? You knew or had reason to know they could do this when you bought the house. If you don’t want to live in a development where the HOA can tell you what to wear, don’t buy a home where the HOA has that power. This is actually an inapplicable example because HOA’s are not governments in the usual sense of the word. They are creatures of contract. Frankly, they can get away with a lot of stuff that even a government can’t get away with precisely because they are contract based – no one is forced to live under their rules. If a HOA wanted to make a rule stating “no electioneering yard signs in this development,” it could do so without running afoul of the first amendment, precisely because everyone in the HOA has voluntarily agreed to abide by its rules. \*\* > [@](#): > > According to your logic, what’s the point of Aritcle I, Section VIII?\*\* To effectively limit the federal government by enumerating the areas in which it is allowed to legislate. The idea behind our federal system is that the states retain the general police power, subject only to the federal government acting within its particular prescribed spheres (and subject to explicit limitations on its power to act, of course – e.g., the contracts clause). And indeed, if this law were federal in nature, I would oppose it as exceeding the limitations placed on the federal government in the constitution, commerce clause be damned.\*\* > [@](#): > > No, it requires that the federal government guarantee the states a republican form of government, which is slightly different. It imposes no duties on the states.\*\* Oh, please. It effectively means the states have to have a republican form of government, because if they don’t the feds will come in and make them adopt that form of government. \*\* > [@](#): > > Your conception of self-governance is quite different from representative democracy. \*\* Oh, really? How? The view I’ve espoused is that the people self-govern via their elected representives. This statement of yours is really quite bizarre.\*\* [/quote] Well, there’s a bit of a bootstrapping there, isn’t there? After all, the people that signed the Constitution obviously weren’t voted into office under the Constitution.\*\* [/quote] So you don’t feel the Continental Congresses were adequately representative? Maybe, maybe not, given that particular moment in history. It was at least as representative as any of the acts of Congress passed in the early days of the republic – it was pretty much the same wealthy white landowners who sent people up to the CC that retained the franchise for voting for Congress. In my view, it’s close enough for government work. And besides, we have an amendment process – if there are serious defects in the Constitution, they can be remedied in that fashion. \*\* > [@](#): > > That’s a rather odd definition of “imposed” you’ve got there. Normally to “impose” means to force someone to do (or not do) something. But in this case, it is the majority that is forcing the majority to not do something. When the majority tells the minority “don’t have sex”, and then minority says “I don’t think you have the right to command that”, and you say that the minority is “imposing” on the majority by refusing to do whatever the majority says, _that_ is Orwellian.\*\* Absent explicit constitutional restrictions, the minority is imposing its will on the majority via the courts by preventing the majority from legislating in a given area. YMMV on whether or not such an imposition is justified, but it’s hardly “Orwellian” to note that it is indeed an imposition. Let’s take a less emotionally charged issue to illustrate. Say the majority, as part of a citywide beautification effort, passes a law preventing the construction of buildings over ten stories tall in order to preserve sightlines to a large monument in the center of town. A minority of developers challenges the law. Can you see how the minority is, in challenging the law, attempting to impose its will on the majority, even as the majority is imposing a rule on the minority via the initial law? \*\* > [@](#): > > Really? [http://dictionary.law.com](http://dictionary.law.com) gives the definition for bill of attainder as “a legislative act which declares a named person guilty of a crime, particularly treason”. I didn’t see any mention of you being declared guilty of a crime. Will DCU finally admit error? Stay tuned.\*\* Black’s Law Dictionary defines bill of attainder as follows: > [@](#): > > **Bill of attainder** – Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. An act is a “bill of attainder” when the punishment is death and a “bill of pains and penalties” when the punhisment is less severe; both kinds of punishment fall within the scope of the constitutional prohibition. US Const. Art. I, Sec. 9, Cl. 3 (as to Congress); Art. I, Sec. 10 (as to state legislatures). > > This view is bourne out in the case law. For example, in _US v. Lovett_, [328 US 303](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=328&invol=303) (1946), the court struck down a Congressional act specifically forbidding payment of government funds to three specifically named government employees thought to hold “subversive beliefs” on the grounds that the act was a “bill of attainder” and thus forbidden by the Constitution. > > Will **The Ryan** admit error? Stay tuned! \*\* > > > [@](#): > > > > Anyway, all of you objections are moot, because the hypothetical mentioned “all the other kids”, not “the US government”. As usual, you based your arguments on the US Constitution, even though it is irrelevant, as is it so often is when you bring it up.\*\* > > I assumed “the other kids” constituted a state or local government, because the hypo doesn’t make any sense otherwise. If they aren’t, I’ve got no worries – I’ll just go play with nicer kids, kids who don’t want me to jump off a bridge. There’s no need for me to force them to rescind their edict; I can just opt out entirely. \*\* > > > [@](#): > > > > 😕 What is the proper due process? Is there some law saying that there is a specific process that must be followed before someone can be voted to jump off a bridge? Or are you basing this on the fact that this is (gasp) unfair? \*\* > > The hypo as presented probably did not afford me due process in the procedural sense – the right to be heard. Obviously, if I get a full and fair hearing, I’ve got no due process complaint (though I do have other complaints, most notably the bill of attainder argument).\*\* > > > [@](#): > > > > And earlier you said “Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act.” What act are you being penalized for? I don’t see any act that you’re being penalized for, and I don’t see any reason to assume that there is any. The kids voted that you should jump off a bridge because they wanted to, not as punishment for a specific act. \*\* > > You emphasize the wrong word – you should focus on “penalty” rather than “proscribed act.” Due process, in the procedural sense, must be granted before a penalty is imposed. \*\* Again, there’s no mention of punishment.\*\* [/quote] You don’t think being forced to jump off a bridge is a punishment?\*\* > [@](#): > > Yeah, but it’s ridiculous to suggest that forcing a woman to carry a baby to term is involuntary servitude :rolleyes:.\*\* There is a world of difference between commanding someone to perform an act and requiring that someone refrain from a particular act, even when refraining from that act imposes difficulties or hardships. I don’t think laws against murder are “slavery” either. \*\* > [@](#): > > You might want to instead ask DCU what he’d think of a Constitutional Amendment making Bush dictator for life. \*\* I think that would be extraordinarily stupid. However, in the highly unlikely event such an amendment were to pass, Bush’s dictatorship would certainly not be unconstitutional – by definition, as the constitution would explicitly allow it. \*\* > [@](#): > > As I understand his position, as long as this was arrived at through democratic means, this would be fine. \*\* You know, my position is not that we should sit idly by and blithely accept the decisions of the legislature. Far from it. If you dislike a law, I encourage efforts to get the law changed. By all means, politick your heart out. Start recall campaigns. Get a referendum on a ballot. Throw out the jackasses that passed the law in the first place. I just think the judiciary shouldn’t get involved unless there is a clear constitutional basis for invalidating a particular law, precisely because democratic decisionmaking should be accorded a measure of respect. \*\* > [@](#): > > I think that “representative democracy” is not quite as accurate a description of DCU’s idea of justified governance as “democratic fascism”; the State can do whatever it wants as long as its wants are determined democratically. Personally, I find fascism to evil regardless of whether it is implemented by .001% of the population, 50.001%, or 99.999%. \*\* And I don’t think you understand what fascim is. The problem with fascism is precisely that it denies to the people the power to have any significant voice in shaping the laws they live under. \*\* > [@](#): > > But apparently “evil” is not a valid legal basis for contesting a law. \*\* No. “Unconstitutional” and “evil” are not synonyms, just as “constitutional” and “virtuous” are not synonyms. ---
**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 17, 2003, 1:36pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/264 "2003-04-17T13:36:01Z")
> [@](#): > > \*Originally posted by The Ryan \* > \*\*The intent of the labor law was to improve people’s ability to provide for their families. \*\* Oh really? Tell that to the guy who loses his job because his employer cannot afford to keep him on payroll due to the mandated wage increase. Tell that to the guy who cannot make ends meet because of the mandated maximum hour requirement. \*\* > [@](#): > > The intent of the sex law was simply to make life harder for some people. \*\* I suspect the proponents of the law would argue its intent is to safeguard their particular notion of morality – that they see society galloping towards the cliffs of depravity and that laws such as this are needed to keep it from charging right off. That isn’t a view I share, or even a goal I find appropriate for government action, but I’d certainly bet the law’s proponents think their intentions are noble and just. Which is why looking to motives is stupid: everyone thinks their own motivations are virtuous. \*\* > [@](#): > > I find it quite reasonable to believe that laws based on good intentions are better than laws based on pure malice.\*\* What was it the road to Hell was paved with again? \*\* > [@](#): > > This is the Great Debates Forum, not the Poetry Forum. If you’re going to chide others for claiming some higher source of rights, then it’s rather hypocritical to do so yourself, even poetically.\*\* :rolleyes: \*\* > [@](#): > > I really don’t see how you get from the idea that a government derives its powers from the consent of the governed to the idea that **restrictions** on the government derive only from the consent of the governed.\*\* Because they do – simple observation tells me so. The Bill of Rights did not descend from on high; it was written by men and passed into law via democratic means. \*\* > [@](#): > > Here’s an analogy: suppose I join a homeowner’s association. If the HOA agreements says that it can regulate lawns, it can regulate lawns. If it says it can regulate roofs, it can regulate roofs. The HOA derives its power from the HOA agreement. Does that mean that every restriction on the power of the HOA must come from the HOA agreement? If the HOA says that it has the right to tell me what to wear, and I say that it doesn’t, must I find a clause in the HOA agreement saying that it doesn’t have the right to tell me what to wear?\*\* I suspect most HOA’s will have in an early clause a statement to the effect that their purpose is limited to things dealing with the physical upkeep of the properties within the association. Absent that, yeah, they could tell you what to wear. And why would you complain? You knew or had reason to know they could do this when you bought the house. If you don’t want to live in a development where the HOA can tell you what to wear, don’t buy a home where the HOA has that power. This is actually an inapplicable example because HOA’s are not governments in the usual sense of the word. They are creatures of contract. Frankly, they can get away with a lot of stuff that even a government can’t get away with precisely because they are contract based – no one is forced to live under their rules. If a HOA wanted to make a rule stating “no electioneering yard signs in this development,” it could do so without running afoul of the first amendment, precisely because everyone in the HOA has voluntarily agreed to abide by its rules. \*\* > [@](#): > > According to your logic, what’s the point of Aritcle I, Section VIII?\*\* To effectively limit the federal government by enumerating the areas in which it is allowed to legislate. The idea behind our federal system is that the states retain the general police power, subject only to the federal government acting within its particular prescribed spheres (and subject to explicit limitations on its power to act, of course – e.g., the contracts clause). And indeed, if this law were federal in nature, I would oppose it as exceeding the limitations placed on the federal government in the constitution, commerce clause be damned.\*\* > [@](#): > > No, it requires that the federal government guarantee the states a republican form of government, which is slightly different. It imposes no duties on the states.\*\* Oh, please. It effectively means the states have to have a republican form of government, because if they don’t the feds will come in and make them adopt that form of government. \*\* > [@](#): > > Your conception of self-governance is quite different from representative democracy. \*\* Oh, really? How? The view I’ve espoused is that the people self-govern via their elected representives. This statement of yours is really quite bizarre.\*\* > [@](#): > > Well, there’s a bit of a bootstrapping there, isn’t there? After all, the people that signed the Constitution obviously weren’t voted into office under the Constitution.\*\* So you don’t feel the Continental Congresses were adequately representative? Maybe, maybe not, given that particular moment in history. It was at least as representative as any of the acts of Congress passed in the early days of the republic – it was pretty much the same wealthy white landowners who sent people up to the CC that retained the franchise for voting for Congress. In my view, it’s close enough for government work. And besides, we have an amendment process – if there are serious defects in the Constitution, they can be remedied in that fashion. \*\* > [@](#): > > That’s a rather odd definition of “imposed” you’ve got there. Normally to “impose” means to force someone to do (or not do) something. But in this case, it is the majority that is forcing the majority to not do something. When the majority tells the minority “don’t have sex”, and then minority says “I don’t think you have the right to command that”, and you say that the minority is “imposing” on the majority by refusing to do whatever the majority says, _that_ is Orwellian.\*\* Absent explicit constitutional restrictions, the minority is imposing its will on the majority via the courts by preventing the majority from legislating in a given area. YMMV on whether or not such an imposition is justified, but it’s hardly “Orwellian” to note that it is indeed an imposition. Let’s take a less emotionally charged issue to illustrate. Say the majority, as part of a citywide beautification effort, passes a law preventing the construction of buildings over ten stories tall in order to preserve sightlines to a large monument in the center of town. A minority of developers challenges the law. Can you see how the minority is, in challenging the law, attempting to impose its will on the majority, even as the majority is imposing a rule on the minority via the initial law? \*\* > [@](#): > > Really? [http://dictionary.law.com](http://dictionary.law.com) gives the definition for bill of attainder as “a legislative act which declares a named person guilty of a crime, particularly treason”. I didn’t see any mention of you being declared guilty of a crime. Will DCU finally admit error? Stay tuned.\*\* Black’s Law Dictionary defines bill of attainder as follows: > [@](#): > > **Bill of attainder** – Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. An act is a “bill of attainder” when the punishment is death and a “bill of pains and penalties” when the punhisment is less severe; both kinds of punishment fall within the scope of the constitutional prohibition. US Const. Art. I, Sec. 9, Cl. 3 (as to Congress); Art. I, Sec. 10 (as to state legislatures). This view is bourne out in the case law. For example, in _US v. Lovett_, [328 US 303](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=328&invol=303) (1946), the court struck down a Congressional act specifically forbidding payment of government funds to three specifically named government employees thought to hold “subversive beliefs” on the grounds that the act was a “bill of attainder” and thus forbidden by the Constitution. Will **The Ryan** admit error? Stay tuned! \*\* > [@](#): > > Anyway, all of you objections are moot, because the hypothetical mentioned “all the other kids”, not “the US government”. As usual, you based your arguments on the US Constitution, even though it is irrelevant, as is it so often is when you bring it up.\*\* I assumed “the other kids” constituted a state or local government, because the hypo doesn’t make any sense otherwise. If they aren’t, I’ve got no worries – I’ll just go play with nicer kids, kids who don’t want me to jump off a bridge. There’s no need for me to force them to rescind their edict; I can just opt out entirely. \*\* > [@](#): > > 😕 What is the proper due process? Is there some law saying that there is a specific process that must be followed before someone can be voted to jump off a bridge? Or are you basing this on the fact that this is (gasp) unfair? \*\* The hypo as presented probably did not afford me due process in the procedural sense – the right to be heard. Obviously, if I get a full and fair hearing, I’ve got no due process complaint (though I do have other complaints, most notably the bill of attainder argument).\*\* > [@](#): > > And earlier you said “Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act.” What act are you being penalized for? I don’t see any act that you’re being penalized for, and I don’t see any reason to assume that there is any. The kids voted that you should jump off a bridge because they wanted to, not as punishment for a specific act. \*\* You emphasize the wrong word – you should focus on “penalty” rather than “proscribed act.” Due process, in the procedural sense, must be granted before a penalty is imposed. \*\* [/quote] Again, there’s no mention of punishment.\*\* [/quote] You don’t think being forced to jump off a bridge is a punishment?\*\* > [@](#): > > Yeah, but it’s ridiculous to suggest that forcing a woman to carry a baby to term is involuntary servitude :rolleyes:.\*\* There is a world of difference between commanding someone to perform an act and requiring that someone refrain from a particular act, even when refraining from that act imposes difficulties or hardships. I don’t think laws against murder are “slavery” either. \*\* > [@](#): > > You might want to instead ask DCU what he’d think of a Constitutional Amendment making Bush dictator for life. \*\* I think that would be extraordinarily stupid. However, in the highly unlikely event such an amendment were to pass, Bush’s dictatorship would certainly not be unconstitutional – by definition, as the constitution would explicitly allow it. \*\* > [@](#): > > As I understand his position, as long as this was arrived at through democratic means, this would be fine. \*\* You know, my position is not that we should sit idly by and blithely accept the decisions of the legislature. Far from it. If you dislike a law, I encourage efforts to get the law changed. By all means, politick your heart out. Start recall campaigns. Get a referendum on a ballot. Throw out the jackasses that passed the law in the first place. I just think the judiciary shouldn’t get involved unless there is a clear constitutional basis for invalidating a particular law, precisely because democratic decisionmaking should be accorded a measure of respect. \*\* > [@](#): > > I think that “representative democracy” is not quite as accurate a description of DCU’s idea of justified governance as “democratic fascism”; the State can do whatever it wants as long as its wants are determined democratically. Personally, I find fascism to evil regardless of whether it is implemented by .001% of the population, 50.001%, or 99.999%. \*\* And I don’t think you understand what fascim is. The problem with fascism is precisely that it denies to the people the power to have any significant voice in shaping the laws they live under. \*\* > [@](#): > > But apparently “evil” is not a valid legal basis for contesting a law. \*\* No. “Unconstitutional” and “evil” are not synonyms, just as “constitutional” and “virtuous” are not synonyms. ---
**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 17, 2003, 1:38pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/265 "2003-04-17T13:38:08Z")
Sorry about the double post – meant to hit “preview” and thought I caught it in time. Dammit. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [April 17, 2003, 1:49pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/266 "2003-04-17T13:49:21Z")
**Dewey** is by no means a totalitarian; he’s made that quite clear. I picked “Statist” simply because it is a “spectrum” term that can mean anything from the Federalist “a stronger-than-the-Articles-of-Confederation government is a good idea” to _“L’etat, c’est moi”_ absolutism. Since we were originally discussing **Dewey** ’s political philosophy and those of the justices he seems to be defending, I chose it as most closely targeting the range of possible views about the degree of acceptable government controls that can be read into his statements to date. **Dewey, TheRyan** does have a strong point here. I will grant that the Declaration of Independence is not legally considered on a par with the Constitution, but it does have some legal validity, and its affirmations of the orinciples underlying our present governmental structure would have to carry some strong moral authority in the interpretation of laws. Wherefore, what implications does “To secure these rights, governments are established…” have in your mind in relation to the present discourse? With regard to your last paragraph, **TheRyan** , I think I have more respect for Potter Stewart’s admission of inability to define obscenity than this nebulous “community standards” doctrine – there are people out there who consider Harry Potter immoral and against the standards of those with whom they associate! But much of law depends on “the reasonable man” – a theoretical construct of a person who thinks things through and then acts. If in 2035 it’s discovered that the low-level radiation from the thorium-based pigments in white paint causes certain cancers, a reasonable man would not have been able to conclude this in 2003 with the present state of knowledge of radiation-caused cancers, and so the defendants in a lawsuit in that year will not be expected to have known that today. On the other hand, painting a baby’s room with a radium-infused glow-in-the-dark paint can be expected to lead to radiation-caused diseases with the current state of the art, and a reasonable man engaged in manufacturing and selling paint can be expected to have found that out and therefore not to have sold it. A “cruel and unusual punishment” permits the judge to decide what is “cruel” and what “unusual” as a “reasonable man.” It’s purposely left vague, IMHO, to allow for such judgments. It goes along with the “excessive bail and fines” sections of the Eighth to suggest that the punishment should fit the crime and should not offend the community’s ethical values. It may be proper to execute a man for a murder; it is not proper to do it by torture. It offends “the reasonable man” to insist that a rapist be castrated as a part of his punishment. But I do see the point you make on the term being somewhat circular-reasoning-based in its application. ---
**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 17, 2003, 2:15pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/267 "2003-04-17T14:15:42Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*Dewey, TheRyan does have a strong point here. I will grant that the Declaration of Independence is not legally considered on a par with the Constitution, but it does have some legal validity, and its affirmations of the orinciples underlying our present governmental structure would have to carry some strong moral authority in the interpretation of laws. Wherefore, what implications does “To secure these rights, governments are established…” have in your mind in relation to the present discourse? \*\* I agree that the Declaration of Independence is a powerful aspirational statement. I think recourse to it in political discussion is effective and appropriate – if you think a law runs contrary to its spirit, it is a splendid tactic to use the Declaration in arguing in opposition to the passage of that law (or in arguing for its repeal). It is an effective and appropriate tactic to make an electioneering strategy out of it: “Candidate X stands opposed to important principles outlined in the Declaration of Independence.” In that sense, the Declaration does carry moral authority and does resonate with the body politic. But as you note, the Declaration is not a legally cognizable document. Laws simply are not invalidated by the courts on grounds that they violate the Declaration of Independence, any more than they are invalidated for violating the Gettysburg Address – another elegant statement of American principles. The Declaration is an aspirational statement, and nothing more. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [April 17, 2003, 4:04pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/268 "2003-04-17T16:04:08Z")
> [@](#): > > how is it just to proscribe a given behavior to half the population while permitting it to the other half. Granted that only gay and bisexual people might want to engage in “deviate sexual intercourse” with a member of the same sex, it still means that every woman in Texas is proscribed from doing the exact same things that every man is permitted to do, and likewise for men. Well the state draws line proscribing behavior for some while permitting to others all the time. It seems to me you have a strong dissatisfaction with the state’s power to draw lines. The state prohibits people from drinking under the age of 21 and prohibits people under 18 from smoking. Here the state has proscribed conduct from a significant portion of the population while permitting another portion of the population to engaged in the conduct. Similarly speaking the state prohibits driving alone by anyone without a learners permit or under the age of 16. People cannot vote under the age of 18. People under 21 can’t view sexually explicit material with a rating over 1 X. The state draws lines all the time and so I don’t think the fact the state is drawing lines in this instance excluding some from doing an act while permitting others to do an act is fatal at all but a legitimate exercise of state power. > [@](#): > > it still means that every woman in Texas is proscribed from doing the exact same things that every man is permitted to do, and likewise for men I don’t know exactly what you are saying here so I am going to comment on what I know the statute to mean. This statute does not prohibit all women from doing something men can do nor does it permit all men to do something women can’t and finally men can’t do something all women can do. Every male and female in the state of Texas can legitimately do what the statute prohibits so long as it is not with a person of the same sex. > [@](#): > > I have no particular interest in working at a day care. But if North Carolina declared that only women could be employed in day care facilities, I’ve lost a possible source of employment – and men now working in such facilities would be out of a job. Well I have some problems with this example. First of all the law is facially gender biased and the Texas statute is not. Second of all there is employment discrimination occurring in your example on the basis of gender. This Texas statute does neither in this instance. This statute is not facially gender biased nor is it discriminating in the area of employment on the basis of gender. Engaging in same sex acts is not a fundamental right. The Court has yet to hold oral copulation and anal sex are fundamental rights and so it cannot be said the state is denying to some the ability to exercise a fundamental right while granting it to others. Finally there is no privacy right to engage in same sex acts and this was stated in Bowers v. Hardwick. > [@](#): > > In addition to which, there is a subtle bit of circular reasoning in your argument: Texas by law finds “deviate sexual intercourse” to be immoral, and this affords them the right to regulate it under intermediate scrutiny. In other words, we can pass this law because the behavior is immoral, and it’s immoral because the law we pass declares it to be. That sounds an awful lot like “If guns are outlawed, only outlaws will have guns” to me. Presuming whistling from my example above not to be protected speech, could the Texas Legislature declare whistling to be immoral in a law making it illegal? Well the Court in Bowers v. Hardwick was very deferential to the state of Georgia regarding their anti-sodomy statute. The Court recognizes the power of the states to legislate to promote the health, morals, public welfare, and safety of the state. This is and has always been the state police power. Unless the state police power burdens a suspect class or a fundamental right, then intermediary scrutiny is applied. The U.S. Supreme Court is deferential in allowing the states to declare what its morals are and then will only assess to see if the means are reasonably related to the promotion or advancement of this moral end. I never really gave a detailed analysis of how something is construed to be immoral or moral at the state level. Yet the states do regulate morality and declare something to be immoral by legislation. It can be viewed that when the state proscribes behavior they are reflecting the morals of the community. Hence, the legislation does not actually declare what is moral or immoral but this decision was perhaps made by the electorate and codified by the legislature. However, it would seem to me that the state has in the past declared something immoral by passing a law proscribing the conduct. The best example of this is with homicide statutes, burglary statutes, statutes dealing with rape, and so forth. The fact is the state can legislate morals. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [April 17, 2003, 4:11pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/269 "2003-04-17T16:11:36Z")
Regarding the issue of states legislating morality and the U.S. Supreme Court’s deference to the legislature in such an instance when no fundamental right is invovled or a suspect class is discriminated against. The Court in Bowers v. Hardwick observed: “Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that \*\*2847 the sodomy laws of some 25 States should be invalidated on this basis.” ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [April 17, 2003, 4:16pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/270 "2003-04-17T16:16:43Z")
Now this reasoning used by the Court in Bowers is similar to my own when I said perhaps the state is doing nothing more than codifying some of the moral beliefs of its citizens. Of course the counsel for the state of Texas is likely to make the same identical argument if not a similar one. The Texas statute is based upon notions of morality and reflects the majority sentiment about the moral propriety of homosexuality. This was enough for the Court in Bowers v. Hardwick. ---
**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 17, 2003, 10:47pm UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/271 "2003-04-17T22:47:13Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > Oh really? Tell that to the guy who loses his job because his employer cannot afford to keep him on payroll due to the mandated wage increase. Now who’s making an emotional appeal? I never said that the effects are never bad. > [@](#): > > I suspect the proponents of the law would argue its intent is to safeguard their particular notion of morality – that they see society galloping towards the cliffs of depravity and that laws such as this are needed to keep it from charging right off. That wouldn’t change the fact that the intent of the law is malicious. The fact that one thinks the world would be better off due to one’s actions does not mean that those actions aren’t malicious. > [@](#): > > Which is why looking to motives is stupid: everyone thinks their own motivations are virtuous. If we accept this principles, then the word “malicious” has no meaning; everyone thinks that their motivations are virtuous, and therefore no one ever does anything out of malice. Yet people have no problem calling the lynching of a black man malicious, even though presumably the perpetrators considered their action to be safeguarding the virtue of the white race. > [@](#): > > What was it the road to Hell was paved with again? Same thing the road to Heaven is. > [@](#): > > Because they do – simple observation tells me so. But that’s not what I asked. You started a paragraph with the assertion that “a government only justly derives its powers from the consent of the governed” and ended with the statement “Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.” You thereby implied that the principle that laws should only be invalidated on bases that the people have already consented to follows from the principle that a government only justly derives its powers from the consent of the governed. If you are truly claiming this, then I would like to know the reasoning behind it. On the other hand, if you are presenting your principle simply as an assertion without any basis of “that’s the way I see things” then you should make that clear. > [@](#): > > The Bill of Rights did not descend from on high; it was written by men and passed into law via democratic means. You once again seem to be confusing sufficiency with necessity. The fact that the Bill of Rights was passed into law via democratic means establishes that such means are **sufficient**. It does not establish that they are **necessary**. As an analogy, suppose I were to say that to be convicted of murder, one must have used a gun. As support, I present a case in which someone used a gun and was convicted of murder. Does that prove anything? > [@](#): > > Absent that, yeah, they could tell you what to wear. 😕 So if I sign a contract which says “I agree that the HOA shall have the power to decide in what condition my lawn and roof shall be maintained”, then the HOA now pas the power to decide how I should dress, because the contract did not exclude that? > [@](#): > > This is actually an inapplicable example because HOA’s are not governments in the usual sense of the word. Special pleading **and** begging the question. Why can’t a bunch of homeowners get together and declare themselves to have sovereignty over a particular region? How is this any different from a bunch of rich white men getting together and declaring themselves to have sovereignty over the Eastern Seaboard? > [@](#): > > Oh, really? How? The view I’ve espoused is that the people self-govern via their elected representives. But it includes more than that. You have using “self-governance” to refer not only to electing representatives, but to those representative having power unlimited by anything beyond a constitution (which the representatives themselves wrote). > [@](#): > > Absent explicit constitutional restrictions, the minority is imposing its will on the majority via the courts by preventing the majority from legislating in a given area. YMMV on whether or not such an imposition is justified, but it’s hardly “Orwellian” to note that it is indeed an imposition. When the majority tries to tell a minority what to do, and the inority refuses, it ost certainly is Orwellian to say that the minority is iposing its will. That’s like accusing the Polish Army of violating German sovereignty by interfering with German military opertations. Sure, the Polish were technically trying to “impose their will” on the Germans by shooting at the Wehrmacht, but the will they were trying to impose was “we’d rather not by part of the Third Reich”. If someone tries to steal your car, but you stop him, you’re imposing your will on him. If a guy tries to rape a woman, and she runs away, she’s imposing her will on him. There are lots of situations where one is techincally correct in saying that one person’s will is being imposed on another, but it’s still misleading. > [@](#): > > I assumed “the other kids” constituted a state or local government, because the hypo doesn’t make any sense otherwise. In your worldview, it doesn’t. Apparently if a group of people get together and call themselves a “government”, then completely new rules apply. What’s so special about the state and local government’s? Why do these groups have a right to slef governance, but a group of kids doesn’t? > [@](#): > > There’s no need for me to force them to rescind their edict; I can just opt out entirely. There you go, imposing your will on those helpless kids 🙂 . > [@](#): > > The hypo as presented probably did not afford me due process in the procedural sense – the right to be heard. What exactly is that right? If congress ios considering a law I don’t like, do I have the right to appear on the floor of congress and argue against it? > [@](#): > > You emphasize the wrong word – you should focus on “penalty” rather than “proscribed act.” Due process, in the procedural sense, must be granted before a penalty is imposed. But if it is not in response to any proscribed act, is it a penalty? If congress simply randomly decides that you should spend a year in prison, does the mere fact that **other** people have been put in prison as a penalty mean that **your** imprisonment is a penalty? > [@](#): > > You don’t think being forced to jump off a bridge is a punishment? How do you define “punishment”? Is it merely something which is unpleasant? > [@](#): > > There is a world of difference between commanding someone to perform an act and requiring that someone refrain from a particular act, even when refraining from that act imposes difficulties or hardships. I don’t think laws against murder are “slavery” either. What about a law prohibiting people from taking any action to prevent someone else from forcing them to pick cotton all day? Isn’t a law prohibiting someone from avoiding a slave-like situation rather similar to slavery itself? > [@](#): > > And I don’t think you understand what fascim is. The problem with fascism is precisely that it denies to the people the power to have any significant voice in shaping the laws they live under. What if the people democratically decide to prohibit themselves from having a significant voice? According to your principle, wouldn’t that be justified? Polycarp > [@](#): > > Dewey is by no means a totalitarian; he’s made that quite clear. I disagree. From his posts, I have gathered that he believes that the people have the right to do whatever they want. Granted, he does not **desire** the people to abolish all personal rights, but he has implied that they have the right to do so. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 18, 2003, 12:07am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/272 "2003-04-18T00:07:14Z")
> [@](#): > > \*Originally posted by Dewey Cheatem Undhow \* > The hypo as presented probably did not afford me due process in the procedural sense – the right to be heard. Obviously, if I get a full and fair hearing, I’ve got no due process complaint (though I do have other complaints, most notably the bill of attainder argument). This is false. “Assume for the sake of the example that you’d been given the allotted time to try to persuade them to vote otherwise, but none of them budged.” You had your hearing, it just didn’t do you any good. And your other complaints are irrelevant as well. The hypothetical is one in which there is no legal recourse open to you. Reasons the Dewey Jumps law wouldn’t hold up in US courts don’t matter. But you seem to have answered my question anyways - you seem to believe that the only recourse one has is to opt out of society. Presumably this means that gays and lesbians in Texas have justifiable grounds for armed rebellion? I think it’s perfectly clear why the Dewey Jumps law shouldn’t be valid - it’s unfair. In precisely the same way the Texas sodomy statute is unfair. All these other examples **Dewey** keeps bringing up are red herrings. Zoning bylaws? Those are to prevent property owners from being hurt by having their property values damaged by inconsiderate developers next door. One can object that this isn’t a good enough reason, but it is a reason rooted in harm to others. There is no reason beyond religion-based bigotry to impose on the liberty of gays and lesbians via sodomy laws. Please, **Dewey** , if you need an example to draw analogies from, you need to find laws with regulate people for no rational reason that your opponents here will agree are valid laws. Religious morality as a basis for a law, if I’m not mistaken, is in violation of that establishment clause thingy, so given that that’s not the basis for sodomy laws, the basis is pure whim. (Unless someone can come up with a moral argument not based on religion for thinking that homosexual acts are immoral - but I can save you some time in this regard - there are no such arguments, leastwise not sound ones.) Question for **Jimmy1**. All your arguments to support the notion that the Texas statute doesn’t discriminate on the basis of gender are equally valid to argue that anti-miscegenation laws didn’t discriminate based on race. Do you see any differences between the two cases that I’m missing, or are you saying that the Loving v. Virginia ruling was in error? Your analogies with laws restricting the actions of minors are also misleading, since there’s a reason for restricting the actions of minors (inability to make responsible decisions due to immaturity), while restricting the actions of gays and lesbians is based on nothing more than bigotry. Please, guys, keep your analogies on point. Governments can restrict all kinds of rights _when they have a compelling basis to do so_. No one here opposed to sodomy laws is likely to think otherwise, so bringing up examples where the government restricts a right for some reasonably obvious and reasonably compelling cause are just not relevant. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [April 18, 2003, 12:11am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/273 "2003-04-18T00:11:54Z")
> [@](#): > > The state draws lines all the time and so I don’t think the fact the state is drawing lines in this instance excluding some from doing an act while permitting others to do an act is fatal at all but a legitimate exercise of state power. But gender and sexual orientation is a non changing constant, whereas age is not. ---
**Author:** ![ComeToTheDarkSideWeHaveCookies](https://avatars.discourse-cdn.com/v4/letter/c/e9bcb4/32.png) [@ComeToTheDarkSideWeHaveCookies](https://boards.straightdope.com/u/ComeToTheDarkSideWeHaveCookies)\ **Post date:** [April 18, 2003, 12:50am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/274 "2003-04-18T00:50:43Z")
I’ll piggy-back on **Blalron’s** rebuttle… The state-imposed legal age of voting, driving and drinking are there to protect the young. Once you become “old enough” to handle the responsibility for the consequences of your own actions…at least in the goverment’s eyes…you are granted these rights and privileges. You might have an argument, **Jimmy1** , if at the age of 18 you could go in and take the State Sodomy Test. But unless Breeders and Queers alike are required to pass the test, or face the penalty of prosecution if they are “caught in the act” without their Sodomy papers…you are still talking about a pure and simple violation of human rights. The goverment simply has no justifyable reason to be involved in what goes in the bedroom between two consenting adults. Period. ---
**Author:** ![Freyr](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/freyr/32/5763_2.png) [@Freyr](https://boards.straightdope.com/u/Freyr)\ **Post date:** [April 18, 2003, 1:20am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/275 "2003-04-18T01:20:05Z")
> [@](#): > > \*Originally posted by Gorsnak \* > \*\*Please, guys, keep your analogies on point. Governments can restrict all kinds of rights _when they have a compelling basis to do so_. No one here opposed to sodomy laws is likely to think otherwise, so bringing up examples where the government restricts a right for some reasonably obvious and reasonably compelling cause are just not relevant. \*\* This brings to mind an interesting point, Say, on voting day I show up at the local voting precient wearing a t-shirt that says, “GAY AND PROUD.” The official managing the precient is also a fundamentalist Christian and upon seeing my shirt refuses to let me vote, specifically because I’m gay. No other reason that I’m simply queer. The state legistlature, upon hearing this thinks it’s appropriate and with a quick vote passes the law. The governor signs it quietly. If I understand the arguments correctly, since there’s specifically no clause in the Federal Constitution guaranteeing the right of gay people to vote, I wouldn’t have recourse in Federal court. The Voting Rights act of 1964 covers, I believe, sex, race, ethnicity and religion, but _not_ sexual orientation. Since it’s specifically not covered by Federal law, the states have the right to legislate on this, correct? ---
**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 18, 2003, 3:30am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/276 "2003-04-18T03:30:27Z")
> [@](#): > > \*Originally posted by The Ryan \* > **But that’s not what I asked. You started a paragraph with the assertion that “a government only justly derives its powers from the consent of the governed” and ended with the statement “Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.” You thereby implied that the principle that laws should only be invalidated on bases that the people have already consented to follows from the principle that a government only justly derives its powers from the consent of the governed. If you are truly claiming this, then I would like to know the reasoning behind it. On the other hand, if you are presenting your principle simply as an assertion without any basis of “that’s the way I see things” then you should make that clear.** This is quite amazing. You correctly state the reasoning in my argument, then claim to want to know the reasoning behind it. WTF? “Government justly derives its power from the consent of the governed.” “Therefore, laws ought to only be invalidated on bases the people have consented to.” The latter statement logically flows from the former. Any law, including a law against passing certain types of laws in the future, is only justly derived from the consent of the governed. I fail utterly to see what is so difficult or complex about this particular argument that puts it beyond your grasp. \*\* > [@](#): > > So if I sign a contract which says “I agree that the HOA shall have the power to decide in what condition my lawn and roof shall be maintained”, then the HOA now pas the power to decide how I should dress, because the contract did not exclude that?\*\* Learn to read. The clause “absent that” in my post indicates unless the HOA by its very text purports to regulate not only the property conditions but the social lives of those agreeing to it, then and only then can the HOA so regulate. Clearly if you sign a HOA in which the HOA’s power is specified as “decid[ing] in what condition my lawn and roof shall be maintained” then the power of the HOA is limited to those matters. At any rate, it’s a stupid example – HOA’s are creatures of contract; they are interpreted in the same manner as any other contract; they only bind the parties to the contract. Because of this fact, an HOA can bind parties in ways a government (at least in the US) cannot – see my political yard sign example. \*\* > [@](#): > > Why can’t a bunch of homeowners get together and declare themselves to have sovereignty over a particular region? How is this any different from a bunch of rich white men getting together and declaring themselves to have sovereignty over the Eastern Seaboard?\*\* [Unca Cecil speaks](http://www.straightdope.com/classics/a3_300.html). \*\* > [@](#): > > When the majority tries to tell a minority what to do, and the inority refuses, it ost certainly is Orwellian to say that the minority is iposing its will. \*\* I included an example which illustrated my point, to which you elected not to respond, choosing instead to Godwinize the argument with silliness about Nazis, rape, and grand theft auto. I stand by my post. \*\* > [@](#): > > What exactly is that right? If congress ios considering a law I don’t like, do I have the right to appear on the floor of congress and argue against it?\*\* Due process does not apply in the passage of a law; it applies when its provisions are carried out. At its most basic, the constitutional requirement is a right to be heard before the arm of government injures you in some way. \*\* > [@](#): > > But if it is not in response to any proscribed act, is it a penalty? If congress simply randomly decides that you should spend a year in prison, does the mere fact that other people have been put in prison as a penalty mean that your imprisonment is a penalty?\*\* The mere fact that you are incarcerated is a penalty, whatever the underlying reason (or lack thereof).\*\* > [@](#): > > How do you define “punishment”? Is it merely something which is unpleasant?\*\* You didn’t answer my question. My dictionary defines it as the infliction of pain or loss, FWIW. \*\* > [@](#): > > What about a law prohibiting people from taking any action to prevent someone else from forcing them to pick cotton all day? Isn’t a law prohibiting someone from avoiding a slave-like situation rather similar to slavery itself?\*\* And you wonder why I say your posts are absurd? :rolleyes: \*\* > [@](#): > > What if the people democratically decide to prohibit themselves from having a significant voice? According to your principle, wouldn’t that be justified?\*\* Theoretically, yes; if the people choose to limit their rights, that’s their call. In a sense, they’ve already done this with the Bill of Rights – they’ve decided to prevent themselves from passing certain types of laws. Practically, and assuming by “significant voice” you mean limiting their participation in the political process in some fashion, it’s difficult to see why the people would elect to do this, as it isn’t in their interest to do so. \*\* > [@](#): > > I disagree. From his posts, I have gathered that he believes that the people have the right to do whatever they want. Granted, he does not **desire** the people to abolish all personal rights, but he has implied that they have the right to do so. \*\* Simple question for you, Sparky: if the first amendment were repealed tomorrow, on what basis would the Supreme Court find speech restrictions “unconstitutional”? ---
**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 18, 2003, 3:44am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/277 "2003-04-18T03:44:26Z")
> [@](#): > > \*Originally posted by Gorsnak \* > **This is false. “Assume for the sake of the example that you’d been given the allotted time to try to persuade them to vote otherwise, but none of them budged.” You had your hearing, it just didn’t do you any good.** Due process attaches to the carrying out of a law, not the passage of it. The constitution would demand that I get a hearing before the law is carried out. You can stipulate that I’ve had such a hearing and lost, but your initial formulation did not include that.\*\* > [@](#): > > And your other complaints are irrelevant as well. The hypothetical is one in which there is no legal recourse open to you. Reasons the Dewey Jumps law wouldn’t hold up in US courts don’t matter. \*\* To hell they don’t. You asked if these kids (with the implicit assumption that these kids are a “government” of some kind) passed such a law, if I would obey it. I provided several constitutional objections to the carrying out of that law, most notably the bill of attainder objection. The only way to get around those objections would be to amend the Constitution entirely to allow for the Dewey Jumps law – in which case, as I noted, there would be no basis for the courts to find your act “unconstitutional,” because the amendment would make the act explicitly constitutional. \*\* > [@](#): > > But you seem to have answered my question anyways - you seem to believe that the only recourse one has is to opt out of society. Presumably this means that gays and lesbians in Texas have justifiable grounds for armed rebellion?\*\* Frankly, I think their better option is to intensify their lobbying efforts. \*\* > [@](#): > > I think it’s perfectly clear why the Dewey Jumps law shouldn’t be valid - it’s unfair. In precisely the same way the Texas sodomy statute is unfair. \*\* Unfair != unconstitutional. I think it is horrifically unfair that you can’t buy beer on Sundays in some places. That doesn’t make blue laws unconstitutional. \*\* > [@](#): > > All these other examples Dewey keeps bringing up are red herrings. Zoning bylaws? \*\* When did I bring up zoning bylaws? The only thing close to it is HOA’s, which I did not bring up – **The Ryan** did. \*\* > [@](#): > > Religious morality as a basis for a law, if I’m not mistaken, is in violation of that establishment clause thingy, so given that that’s not the basis for sodomy laws, the basis is pure whim. \*\* Morality, religious-based or not, is a perfectly valid basis (from a constitutional point of view) on which to pass legislation. Why do you think we have laws banning public nudity? ---
**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 18, 2003, 3:49am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/278 "2003-04-18T03:49:45Z")
**Freyr** : I think your analysis is right as a purely theoretical matter. Somehow I doubt even the most brazenly fundamentalist state in the nation could pull that one off, though (Good Lord, how would they even enforce it?). ---
**Author:** ![Beagle](https://avatars.discourse-cdn.com/v4/letter/b/85f322/32.png) [@Beagle](https://boards.straightdope.com/u/Beagle)\ **Post date:** [April 18, 2003, 3:51am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/279 "2003-04-18T03:51:03Z")
Forgive me for this as I only read the first and last pages of this thread. If the issue of common law felonies has been raised, I missed it. It seems to me that it’s difficult to find a constitutional right to something that was illegal in the inherited common law. OTOH, it’s an archaic law. I’d guess that a substantial percentage of the adult population–not to mention the teenagers–break it with frequency. It’s not that I like sodomy laws, mind you. If it’s wrong, I don’t wanna be right. Etc. It’s just that legal precedent handed down for generations makes sodomy a felony. I like the civil rights arguments, but they aren’t based on much precedent. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [April 18, 2003, 4:58am UTC](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368/280 "2003-04-18T04:58:40Z")
> [@](#): > > All your arguments to support the notion that the Texas statute doesn’t discriminate on the basis of gender are equally valid to argue that anti-miscegenation laws didn’t discriminate based on race. Do you see any differences between the two cases that I’m missing, or are you saying that the Loving v. Virginia ruling was in error? **Gorsnak** there is a huge difference between the two cases. The statute at issue in Loving v. Virginia was not not race neutral but as the United States Supreme Court noted was facially a race conscious statute. That is vastly different here in this instance because this statute is not facially a gender driven statute. The Virginia statute stipulated: > [@](#): > > If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in s 20–59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.’ and > [@](#): > > If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary \*\*1820 for not less than one nor more than five years.’ Hence, this statute on its face is not race neutral but race biased and race conscious. This is nothing like the Texas Sodomy statute because facially the statute does not stipulate, “Only males may engage in same sex acts and females cannot or only females can engage in same sex acts while males cannot.” The statute proscribes same sex acts regardless of gender. So facially it is gender neutral whereas the statute in Loving v. Virginia had very little facially neutral about it. > [@](#): > > Your analogies with laws restricting the actions of minors are also misleading, since there’s a reason for restricting the actions of minors (inability to make responsible decisions due to immaturity), while restricting the actions of gays and lesbians is based on nothing more than bigotry. This is very conclusionary. These laws are nothing more than bigotry according to whom? You? So what! I really could not care less and the U.S. Supreme Court could not care less than I do about your sole opinion as to whether or not these laws are nothing more than bigotry. According to the U.S. Supreme Court majority in Bowers v. Hardwick they evidently could not care any less with the issue of bigotry but focused on the fact the Georgia statute was a legitimate exercise of the state police power to legislate the moral beliefs of the community and the state. The fact that in your opinion the law is nothing more than bigotry does not aid your argument legally. With this said my analogies about restricting the action of minors is not misleading but on point. You should really read some U.S. Supreme Court opinions and many other federal opinions in which the power to control the conduct of minors was not based on their immaturity levels but largely a use of the state police power to provide for the safety and morals of the community. Did you even bother to read the excerpt I included from Bowers v. Hardwick? The Court said: > [@](#): > > “Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that \*\*2847 the sodomy laws of some 25 States should be invalidated on this basis.” The Court stated in unequivocal terms the legislation in Georgia was based upon the morals of the community. This is not only a legitimate exercise of the police power but the Court even repudiates the argument it is not a “rational basis” and then proceeds to argue a law based on the moral beliefs of a majority in the community is a rational basis for laws; just as regulating when people can drink and smoke is a legitimate exercise of the state police power and when based upon the moral beliefs of the community a rational basis for them. This is just one reason why the analogies are on point. The analogies are on point because of some of their other similarities. There is no fundamental right to drink or smoke under the U.S. Constitution just as there is not a fundamental right to engage in same sex acts under the U.S. Constitution. In both instances the state is proscribing behavior and this is a power the states can legitimately dp/ The state sought to legislate and proscribe at what age people can drink and smoke as a legitimate exercise of the state police power to provide for and regulate the morals of the community just as the state can likewise regulate whether or not people can engage in same sex acts to provide for and regulate the morals of the community. > [@](#): > > Please, guys, keep your analogies on point. Governments can restrict all kinds of rights when they have a compelling basis to do so. No one here opposed to sodomy laws is likely to think otherwise, so bringing up examples where the government restricts a right for some reasonably obvious and reasonably compelling cause are just not relevant. You should take your own advice here because your criticisms of my analogy are not legally on point whereas my analogies are legally on point. For starters the government does not always have to possess a “compelling state interest”. This compelling state interest applies only when a fundamental right has been facially burdened by the statute, or the statute facially discriminates on the basis of race, gender, or some other suspect class. In this instance the Court has previously held in Bowers v. Hardwick there is no fundamental right to engage in homosexual conduct and as a result the state of Texas. Nor are homosexuals or same sex couples considered a “suspect class” and as a result the state of Texas does not have to show a compelling state interest and No strict scrutiny. As the Court noted in Romer v. Evans if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. The state of Texas only needs to so a legitimate end. > [@](#): > > so bringing up examples where the government restricts a right for some reasonably obvious and reasonably compelling cause are just not relevant Well this can’t apply to my analogies. Why? Because first of all one does not have a “right” to drink alcohol or smoke tobacco. Just as there is no right to engage in same sex acts. So if you are using this quote to criticize my argument then your own statement is misleading because there are no rights implicated in my analogies. Next the U.S. Supreme Court has noted that regulating a communities morals is a legitimate interest and a legitimate interest is all that is needed at this point. Regulating a communities morals is also a reasonable exercise of the state’s police power. Just as the state has the authority to legislate obscenity to protect the moral propriety of society and the Court has held this to be a legitimate and reasonable exercise of the police power, then the state can also state they are protecting the moral propriety and fabric of the community by proscribing same sex acts and the U.S. Supreme Court has already noted once before this was a rational, or in other words reasonable exercise of the state police power. So to use your phrase your “criticisms” are not on point, at least, not legally. > [@](#): > > You might have an argument, Jimmy1, if at the age of 18 you could go in and take the State Sodomy Test. But unless Breeders and Queers alike are required to pass the test, or face the penalty of prosecution if they are “caught in the act” without their Sodomy papers…you are still talking about a pure and simple violation of human rights. What human rights are being violated Honeydew? Under the law as it now stands there is no right to engage in same sex acts. > [@](#): > > The goverment simply has no justifyable reason to be involved in what goes in the bedroom between two consenting adults. Period. Well from a philosophical and libertarian point of view I agree with you. However, from a legal point of view this is not true. At this point in time the state could legitimately prohibit any one outside of marriage from engaging in sexual intercourse. Why? Because the U.S. Supreme Court has never held sexual intercourse to be a fundamental right. The point of this example is to demonstrate when a fundamental right is not at issue the state can legitimately get involved as to what goes on in the bedroom. [Previous page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=13) [Next page](https://boards.straightdope.com/t/supreme-court-hears-challenge-to-texas-sodomy-ban/164368.md?page=15)