Supreme Court hears challenge to Texas Sodomy Ban

[Gorsnak]

*Originally posted by Dewey Cheatem Undhow *
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.

Please spare me. The hypothetical quite clearly asked you simply to what extent you are willing to go in worshipping the will of the majority. Since you have stated that the only legitimate constraint on the will of the majority is the will of the majority, if the kids, who you are right to see as “some sort of government”, but wrong to see as the US government, will unanimously that you jump, and override any prior procedural limitations they might have placed upon themselves, then by refusing to jump you would, by your own argument, be imposing your will on the majority, something you hold to be verboten. Clamour on about obscure or not-obscure points of law all you want, they’re not to the point. This is my hypothetical, and I have declared it to be the case that the majority has ruled. You have no legal recourse. Is the majority to be obeyed or not? Remember, you admit of no legitimate limitations on the will of the majority, besides any that are self-imposed - and those have been declared not to exist for the purposes of the hypothetical.

**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. **

** 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?**

What is that if not a zoning bylaw? Good lord, it was only a couple posts ago.

**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? **

Are you trying to tell me that if a law were passed requiring everyone to keep kosher, that would not be in violation of the establishment clause of the First Amendment? I find that rather hard to believe. So why, then, would a law requiring people to adhere to a few Biblical admonitions to refrain from same-sex sex be any different? I’m not saying morality isn’t a legitimate basis for law (though it’s generally a questionable one), just that one needs to produce an actual non-religious moral argument for why the principle in question is indeed a moral concern. This cannot be done in the case of laws against homosexual sodomy.

Originally posted by Jimmy1
**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.

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.
**

"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.’ "

The Virginia statute did not stipulate “only colored persons can marry interracially and white persons cannot, or only white persons can marry interracially and colored persons cannot.” The statute proscribes the same action, interracial marriage, regardless of race. So facially it is racially neutral.

“§ 21.06. Homosexual Conduct (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.”

The same sex. That’s not a direct reference to gender in a driving part of the statute? Let me get this straight. If the Virginia statute had just said “If two people of different races” instead of “If a white person and a colored person”, then it would have been constitutional? Please explain the legal difference between the language of the actual Texas statute, and an alternative version which reads “If a man engages with deviate sexual intercourse with another man, or a woman engages in deviate sexual intercourse with another woman, he or she commits an offense.” This language is exactly analogous to the Virginia anti-miscegenation law (thanks for looking that up, by the way), and doesn’t change the meaning of the Texas law one iota. All this “The statute proscribes same sex acts regardless of gender” stuff is precisely logically equivalent to “Blacks and whites have the same right to marry - just so long as they marry within their race.”

[Dewey_Cheatem_Undhow]

*Originally posted by Gorsnak *
Clamour on about obscure or not-obscure points of law all you want, they’re not to the point. This is my hypothetical, and I have declared it to be the case that the majority has ruled. You have no legal recourse. Is the majority to be obeyed or not? Remember, you admit of no legitimate limitations on the will of the majority, besides any that are self-imposed - and those have been declared not to exist for the purposes of the hypothetical.

I believe my answer included a description of the result when the Constitution was amended to allow for the Dewey Jumps law. What you have continued to fail to answer is the logical question flowing from that assumption: if the constitution explicitly allows for the Dewey Jumps law, on what possible basis can that law be called “unconstitutional?” **

What is that if not a zoning bylaw? Good lord, it was only a couple posts ago.**

It’s a long fucking thread, and I was pretty tired last night. I did a text search on “zoning” and didn’t find anything, and that comment didn’t spring to mind. Mea culpa.

At any rate, I stand by the example for what it was – an illustration of a narrow point, namely that a minority suing to prevent the implementation of a law passed by the majority is an imposition on the majority by the minority. Note that the imposition may or may not be justified, but the “imposition” moniker is nonetheless accurate. It’s a narrow point; don’t make more out of it than it is. **

Are you trying to tell me that if a law were passed requiring everyone to keep kosher, that would not be in violation of the establishment clause of the First Amendment? I find that rather hard to believe. So why, then, would a law requiring people to adhere to a few Biblical admonitions to refrain from same-sex sex be any different? I’m not saying morality isn’t a legitimate basis for law (though it’s generally a questionable one), just that one needs to produce an actual non-religious moral argument for why the principle in question is indeed a moral concern. This cannot be done in the case of laws against homosexual sodomy.**

I disagree. There are plenty of people who are uncomfortable with homosexual sodomy, even to the point of finding it immoral, without reference to a (to use a phrase popular around here) Magical Sky Pixie. Consider that godless Communists like Castro and fascist motherfuckers like Hitler have imprisoned and tortured homosexuals – is Castro a fundamentalist Christian? Was Hitler a religious fanatic? (Please note, I’m not saying that sort of repression is justifiable, I’m just pointing out that discomfort with homosexuality is not necessarily driven by religion.)

And again I ask: upon what basis do we ban public nudity, if not morality? Is that morality driven by religion? Why or why not?

[Gorsnak]

*Originally posted by Dewey Cheatem Undhow *
I disagree. There are plenty of people who are uncomfortable with homosexual sodomy, even to the point of finding it immoral, without reference to a (to use a phrase popular around here) Magical Sky Pixie. Consider that godless Communists like Castro and fascist motherfuckers like Hitler have imprisoned and tortured homosexuals – is Castro a fundamentalist Christian? Was Hitler a religious fanatic? (Please note, I’m not saying that sort of repression is justifiable, I’m just pointing out that discomfort with homosexuality is not necessarily driven by religion.)

Discomfort != moral belief

I’m well aware of the prevalence of homophobia. I’m also well aware of the fact that it has no rational justification. Racism was widespread as well. Did that justify racist laws? Racists were of the (unjustified) opinion that miscegenation and other such things were immoral, and laws against them were (falsely) said to be based on protecting public morality. How is this case any different?

The point about religion is that it is the sole source of an argument that homosexual acts are immoral that isn’t a complete load of dung. All the secular arguments are textbook cases of fallacies. (Actually, the religious argument is questionable as well, thanks to a little piece known as The Euthyphro, but there’s a semi-successful dodge for that.) I could go into detail on this point, but I don’t think this is really the thread for it. Suffice it to say that moral philosophers are unanimous on this point, and they have a hard time agreeing that the sky is blue.

[Gorsnak]

*Originally posted by Dewey Cheatem Undhow *
I believe my answer included a description of the result when the Constitution was amended to allow for the Dewey Jumps law. What you have continued to fail to answer is the logical question flowing from that assumption: if the constitution explicitly allows for the Dewey Jumps law, on what possible basis can that law be called "unconstitutional?"

On no basis could it be called unconstitutional, of course, but how is that relevant? Constitutionality isn’t the question, and never was. The question is whether you are willing to accept the authority of the will of the majority. This isn’t a legal question. It’s a moral question. Do you really believe that the only justifiable constraints on the will of the majority are self-imposed? If so, you will jump. If you do not jump, you obviously believe there are some things the majority cannot legitimately will, and hence there are some constraints upon the majority will that are not self-imposed.

[Mars_Horizon]

So when is SCOTUS going to issue a ruling in this case? Anyone know?

[Dewey_Cheatem_Undhow]

*Originally posted by Gorsnak *
Discomfort != moral belief

Sure it is. What is calling something “immoral” if not essentially saying “we are extremely uncomfortable with that practice?” Again, for the umpteenth time: why do we have public nudity laws?

[Dewey_Cheatem_Undhow]

*Originally posted by Gorsnak *
**On no basis could it be called unconstitutional, of course, but how is that relevant? Constitutionality isn’t the question, and never was. **

Re-read the title of the OP and get back to me. **

The question is whether you are willing to accept the authority of the will of the majority. This isn’t a legal question. It’s a moral question. **

You mistake me for a moral relativist. I believe the courts, in our constitutional scheme, should be limited in their interpretation of the constitution on grounds that the only just basis for lawmaking is the consent of the governed. That does not mean that I necessarily find the decision of the majority to always be moral, nor does it mean that the minority should blithely accept those decisions. Beyond politicking, I think civil disobedience is an acceptable tactic, as is armed revolution in particularly extreme cases. And of course, there is always the option to vote with one’s feet.

The real question is: should the courts be arbiters of what is or is not “moral.” I would posit that such a vague standard should be kept far from their grasp. Taken to its logical conclusion, allowing the courts to invalidate the decisions of the majority because they found those decisions to be “immoral” would eviscerate the ability of the people to make meaningful policy choices. It would reduce Congress and the state legislatures to the role of high school student councils, only capable of making decisons to the extent the principal finds permissible. And that is unacceptable in a government of the people, by the people and for the people. **

Do you really believe that the only justifiable constraints on the will of the majority are self-imposed? If so, you will jump. If you do not jump, you obviously believe there are some things the majority cannot legitimately will, and hence there are some constraints upon the majority will that are not self-imposed. **

As noted above, there are other options available to me.

But let’s note where your example butts heads with the real world. The fact is, the majority HAS decided on a limitation that would prevent the Dewey Jump Act: the bill of attainder clause in the constitution. In short, the majority has in fact recognized the unfairness of the type of legislation you describe, and has taken steps to prevent it. You can construct wild-assed scenarios all day long in an attempt to “prove” virtually any point; the fact remains that in the real world this just is not a concern.

[Gorsnak]

Come now Dewey, you are not following the argument. The constitutionality of the hypothetical is irrelevant because it is attempting to get at a question about how the constitution should be interpreted. Obviously the question of how the constitution should be intepreted is not a matter of constitutionality, on pain of blatant and obvious circularity. To recap, you hold that the sole principle which has legal weight is majority rule. I, on the other hand, believe that a second principle ought to have legal weight, namely, the principle that the majority can’t oppress the minority just because they feel like it (in other words, liberty shouldn’t be restricted without cause). Both these principles are expressed in varying degrees of clarity in the Constitution, other founding documents, and the political philosophies out of which those documents arose. You argue that judges are obliged to interpret the Constitution giving moral weight to the majority rule principle, but no weight to the liberty principle, by interpreting the passages which protect liberties narrowly. I argue that they are obliged to give weight to both principles by interpreting the passages which protect liberties more broadly. So, I have no problem with Justice Warren writing “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” when the Constitution fails to mention this sort of thing explicitly, though presumably this is the sort of judicial activism you abhor.

So, since you think only one moral principle is legally relevant, it seems entirely appropriate to ask you whether you are willing to accept its authority in a hypothetical situation where it results in negative consequences for you, and where the second moral principle offers a clear and obvious defense for you. So far you have declined to accept the consequences of your own arguments. Your repeated obfuscation is irrelevant. It is no defense to respond to a hypothetical by calling it wild-assed. I thought most lawyers had a least a basic familiarity with philosophy. Apparently I was mistaken. Extreme hypotheticals are helpful precisely because they are designed to test the limits of a position. It does no good to the opponent of Cartesian skepticism to rail about how “wild-assed” the Evil Genius is. It does no good to the defender of utilitarianism to complain about the “wild-assed” nature of the Utility Monster. So, for the last time, do you really accept that there are no constraints on the will of the majority that are not self-imposed? (Note: the correct response, if you do, is known as “biting the bullet”, and would look something like “Yes, I would accept the will of the majority, but I think the likelihood of them being so capricious is so vanishingly small I don’t lose sleep over it.” I would then point out a myriad of cases where the majority has been extremely capricious.)

As for reality, my example doesn’t really but heads with it at all. Its differences from reality are a matter of degree, and that is all. While the majority does seem disinclined to kill people on a whim, it has historically felt extremely comfortable meting out all kinds of negative consequences on innocent people based on whims regarding race, gender, orientation, and a host of other irrelevant qualities.

As for your repeated harping on the public nudity laws, I can quite easily construct a defensible argument (though not one which I would personally endorse) based on secular principles which would suggest a legitimate morality concern. It would run something along the lines of public nudity having a negative impact upon the formative sexual identities of youth. I don’t believe that, but fully fleshed out it is a coherent and defensible argument, unlike secular arguments against same-sex sex. What was your point, exactly?

[Dewey_Cheatem_Undhow]

:rolleyes:

Look, I understand your argument. Indeed, I’ve answered it in much the way you wanted me to: namely, that absent a constitutional restriction on the law in question, there is nothing the judiciary should have to say on the matter. In the instance of your Dewey Jump law, I explicitly stated that, assuming the relevant constitutional prohibitions were amended away, there would be nothing the judiciary could properly do to change the outcome of that law. If that isn’t biting the bullet, I’m not sure what is.

I then further point out that recourse to the judiciary is not the sole option of an unhappy minority. That is no small point.

And your example does conflict with reality, in a key way: the majority has already taken the type of law you describe explicitly off the table, via the bill of attainder clauses. It isn’t just a matter of the majority refraining from passing those kinds of laws; it’s a matter of the majority taking an affirmative act to prevent those kinds of laws from ever being passed in the first place.

Finally, your defense of public nudity laws could easily be recast with a little fiddling as a defense of sodomy laws. Like you, I would disagree with that defense, but I think it could be coherently put together without recourse to religious doctrine.

[Gorsnak]

I’d like to see this “recast with a little fiddling”. Public sodomy isn’t at issue here, and private sodomy between consenting adults can have no impact on anyone aside from the consenting adults involved.

[ComeToTheDarkSideWeHaveCookies]

*Originally posted by Jimmy1
What human rights are being violated Honeydew? Under the law as it now stands there is no right to engage in same sex acts.

Since when is US law the “authority” on HUMAN rights?

Regardless of the chicken vs egg definitions game, I feel that it is a violation of Human rights for any governing or legislating body to have anything to do with what I do (or any other consenting adult does) in the bedroom. Government as “Moral Police” is the beginning of a very slippery slope. Morals are too transient, too fluid, and too fundamental to the INDIVIDUAL for Government to have much hope of ever enforcing. So they should stop trying. It is a waste of everyone’s time and energy, and in this case (and many others) it is just plain wrong.

*Originally posted by Jimmy1
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.

Again, what I’m saying is that the current precidents and US government horseshit (in this particular matter) is just that…horseshit.

I realize that the dogma and rhetoric and paper trail need to be updated…I realize that it requires action across all portions of our country’s government, from voter to town to county to state to federal level.

But there comes a point when you admit that status quo is…well…horseshit.

[Dewey_Cheatem_Undhow]

*Originally posted by Gorsnak *
**I’d like to see this “recast with a little fiddling”. Public sodomy isn’t at issue here, and private sodomy between consenting adults can have no impact on anyone aside from the consenting adults involved. **

The fiddling would go something along the lines of laws demarcating what is considered acceptable and what is considered deviant, and in doing so shapes the identities and activities of the young, and thus discourages them from experimenting with homosexuality, which might distort their future sexual identities. Again, not a view I endorse, but one that is not totally incoherent.

There are other examples as well. On what grounds does the state outlaw bigamy? Or even statutory rape in the context of older (16, 17 year old) teens? Both are based on explicitly moral grounds quite removed from practical harm. Yet no one’s got a problem with those laws.

[Polycarp]

Well, if the law is not discriminatory on the basis of sex, then what would happen if, e.g., Eve proceeds to Texas and engages in sex. Under the laws of that great state, one may not change one’s birth gender – so she would still be male.

Which of the following would be illegal for her to do, remembering that she is legally male under Texas law?
[ul][li]Commit fellatio on a male[/li][li]Have him commit cunnilingus on her[/li][li]Have penile-vaginal intercourse with a male[/li][li]Commit cunnilingus on a female[/li][li]Have cunnilingus committed on her by a female[/li][li]Be the recipient of anal insertion by a male[/li][li]Be the recipient of anal insertion by a female wearing a strap-on[/li][li]Using a strap-on, commit anal insertion on a male[/li][li]Using a strap-on, commit anal insertion on a female[/ul][/li]
BTW, Jimmy1, while I disagree with many of your premises and statements, may I commend you on your ability to conceive of a logical argument and to express it in clear statements? It’s been a real pleasure to read your posts.

One final point: Governments do not have rights, they have powers. Those powers derive from the consent of the governed. Individuals have rights, some of which are protected from government infringement by the Constitution. A statement that “there is no right to…” is invalid on its face; what is accurate is “no jurisprudence has recognized a right to … as among those protected by the Constitution.”

[Dewey_Cheatem_Undhow]

*Originally posted by Jimmy1 *
**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. **

Oddly, this is a highly arguable statement. The Supreme Court has repeatedly upheld the right to privacy in the sexual arena in the area of procreative choices (e.g., birth control, abortion). It seems to me the most fundamental procreative choice is the decision to engage in unprotected heterosexual vaginal intercourse. So under Supreme Court jurisprudence, that type of sexual activity might be constitutionally protected, while anal sex, blow jobs, and cunninglinguis, and other sexual activities are not. That is admittedly a jarring inconsistency, but then no one has ever accused the SCOTUS of being a paragon of uniformity in their decisionmaking.

[Polycarp]

In defense of that last statement, and following Dewey’s reading of the Ninth Amendment, the people of the State of Georgia now have the right to engage in sodomy, because the Georgia Supreme Court found the sodomy law as violative of the right to privacy which is explicit in the Georgia State Constitution. If Hardwick were raised today, it would never have made it to Federal court – it would have been thrown out as an illegal arrest by Georgia state precedent.

[Gorsnak]

*Originally posted by Dewey Cheatem Undhow *
The fiddling would go something along the lines of laws demarcating what is considered acceptable and what is considered deviant, and in doing so shapes the identities and activities of the young, and thus discourages them from experimenting with homosexuality, which might distort their future sexual identities. Again, not a view I endorse, but one that is not totally incoherent.

You’re arguing (or rather, giving an argument - I realize you don’t endorse it) that the mere existence of practices is going to have an impact of formative identities, rather than that exposure to practices will have an impact. That’s pure, unmitigated bullshit. What happens between consenting adults in private by definition has no impact beyond the bedroom door. What happens in public is a very different story. As for “encouraging experimentation etc etc”, that flies in the face of everything we know about homosexuality. Okay, so maybe this isn’t totally incoherent, but it’s not remotely defensible, either. One can be blatantly wrong without engaging in self-contradiction.

[Mars_Horizon]

*Originally posted by Mars Horizon *
**So when is SCOTUS going to issue a ruling in this case? Anyone know? **

No really, I did want to know - how long will it take for SCOTUS to make a decision on this issue?

[Dewey_Cheatem_Undhow]

Gorsnak: I agree it’s bullshit. I also agree that the argument you posited for public nudity statutes is bullshit. Both defenses rely on a gut-level belief that the prohibited act causes some moral harm. At some level, every argument based wholly on morality boils down to such gut-level judgments. I mean, really, why do we have laws against bigamy? I think the answer is at a basic level, culturally we are not comfortable sanctioning marital relationships with more than one person. The same thing applies in the instant case.

[Dewey_Cheatem_Undhow]

*Originally posted by Mars Horizon *
**No really, I did want to know - how long will it take for SCOTUS to make a decision on this issue? **

From the link in the OP:

The Supreme Court should rule on the case before recessing for the summer in late June or early July.

[Freyr]

*Originally posted by Dewey Cheatem Undhow *
**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?). **

Let’s take the hypothetical situation down a notch.

We’ll keep it at the level of the state courts. In this state, there’s a voting rights act that mirrors the federal law, but sexual orientation is not specifically mentioned. Just the usual race/religion/creed/color/ethnicity/sex “protected classes.”

The given situation happens and I try to sue the state for infringing upon my right to vote.

Would the courts in this hypothetical state agree that a person who’s right to vote that is not specifically delineated in either the constitution (of that state) or in statute law can be denied the right to vote?

Your argument (or my perception of your argument) in this thread seems to hinge on the point that any right not specficially delineated does not, legally, exist. Therefore, if I were not allowed to vote as a gay man, I would have no legal recourse.