Freyr: I think your analysis is correct, with one small caveat. AFAIK, the states by default make all citizens of legal age eligible to vote, with exceptions carved out of that general rule (e.g., convicted felons not allowed to vote, etc). Thus, I think in order for the state to remove your right to vote on the basis of orientation would require a similar specific carveout from the general rule, strictly as a matter of statutory construction.
Assuming such a carveout passes, I think your analysis is correct. You would not have recourse in the courts, as per your stipulation that no state statute or constitutional provision applies and we’re ignoring federal statutory law. You would, of course, have the full range of first amendment protections allowing you to persuade your state to change the law, and you also retain the option to vote with your feet.
Now, like I said, I think such a carveout is incredibly unlikely in the real world. Even putting aside the probability that all but the most Fred Phelps-like fundamentalists would be unlikely to vote in favor of such a brazen restriction on voting rights, enforcement of that proposal would be a real bitch.
PS: Obviously, I’m assuming a court using the constitutional theory I’m defending, without reference to precedent. Regarding your specific question “what would the court do,” in real life YMMV depending on who’s hearing the case and how he reads prior case law’s applicability to these facts.
Nonsense, and I’m entirely shocked that Dewey didn’t call you on it.
I quote from United States v. Virginia, 518 U.S. 515 (1996) (all emphases added, footnote omitted):
My Con Law prof would have failed you in a heartbeat for so drastically fucking up the constitutional scrutiny involved in a gender-based Equal Protection claim.
Gorsnak you are essentially telling the U.S. Supreme Court they got it wrong when they said the statute at issue in Loving v. Virginia was facially race discriminatory. The statute in Loving v. Virginia is not neutral at all. The majority of the Justices on the Court in Loving v. Virginia, you know the professionals, even tell you in the case it is not a neutral statute.
Personally I don’t think you are using the same definition of the word “neutral” as the U.S. Supreme Court is using it and I am relying on their definition of the word “neutral”. When the Court says a statute is “facially neutral” such as the statute is “race neutral” they are essentially stating the statute makes no reference to race or the classification scheme in the statute is not based off of race or it does not grant to one race privileges and immunities and denies them to another on the account of race. This is how the Court has used the word “neutral”. You can extrapolate this meaning from a host of U.S. Supreme Court opinions dealing not only with racial classifications but also in Free Exercise of Religion cases.
Now using this reasoning the Texas statute is facially gender neutral because no specific gender is being referenced nor is one gender being granted any privileges and immunities to the exclusion of another gender. In other words, the statute is not permitting one gender to do something the other gender cannot. The words “same sex” does not reference gender nor is it a “gender” phrase. The words “same sex” does not reference gender in the sense that you cannot discern male or female. The words “same sex act” is not a gender identification phrase because no gender is being identified. The words “same sex” is a rather general phrase. Not as general as “most people” but it is general in the sense that it does not identify specifically a male or female. However, this is different from the Virginia statute in that the words, “white person” is a race identification phrase and so is “colored person” and neither are general in any sense. Now lets go through the differences between the statute in Loving v. Virginia and the Texas statute.
"
Lets read the Virginia statute again:
Hmmm…No I must concur with the U.S. Supreme Court when they said the Virginia statute is not race neutral. The statute specifically says, “any white person,” and this is a reference to “race”. Yes believe it or not the phrase “any white person” is not a race neutral phrase but a race conscious phrase. “Or any colored person” is also a race conscious phrase. Yes the phrase, “any colored person,” is a reference to race. This statute then proscribes conduct on the basis of race. Specifically, it prohibis “white people” from marrying “colored people” and the sole statutory scheme is based on nothing more than “race”. The marriage scheme is based on nothing more than “race”. It is predicated upon white people and colored people. Hence, this is not a race neutral statute but as the U.S. Supreme Court correctly noted it was a statutory scheme based upon “race”.
Now this is in contrast to the Texas statute at issue regarding same sex acts.
This is not even remotely close to the statutory scheme at issue in Loving v. Virginia. Why? Well first of all the phrase “same sex” does not reference any particular gender. The phrase “same sex” does not specifically reference male or female. Whereas the phrase, “white person” is referring specifically to a race of people, the caucasion race, whereas as “colored person” is specifically referencing members of the black race.
Additionally the Texas statute does not prohibit the conduct on the basis of gender whereas the Virginia statute in Loving v. Viriginia’s entire scheme was premised upon race. The Virginia statute prohibited “white” people from marrying “colored people” whereas the Texas statute does not stipulate in any fashion only “males” may engage in same sex acts but “females” cannot or vice versa. Nor does the Texas statute prohibit all males and females from engaging in anal sex or oral sex, whereas the Virginia statute prohibited all white people from marrying any colored person. Males and females may engage in oral and anal sex. Every male and female in the state of Texas has the opportunity to engage in oral sex and anal sex whereas in Virigina no white person could marry any black person and vice versa.
Last but certainly not least assuming for the sake of arguendo the Texas statute is not gender neutral it is different from the statute in Virginia v. Loving in one very important aspect. Race is a “suspect” classification whereas homosexuals, including lesbians are not suspect classes. The statute in Loving v. Virginia could not pass a strict scrutiny analysis whereas the statute at question in Texas only needs to pass a lower level of scrutiny, namely they have a legitimate end and rational means to this end. As I have noted before the Court has found as a legitimate exercise of the state police power when they regulate the morals of the community or pass legislation in pursuance of the morals of a community or state.
As Justice Scalia noted the state can constitutionally “preserve traditional sexual mores” and the means to this end, such as proscribing same sex acts, “have been specifically approved by the Congress of the United States and by this Court.”
Dewey you stated:
The U.S. Supreme Court rulings have not been this broad, unless I am missing a case. The U.S. Supreme Court has upheld sexual privacy in the arena of marital privacy, Gitlow v. Connecticut, but I am not aware of any opinion where the U.S. Supreme Court has held we have a general right of sexual privacy. The states cannot forbid a married couple from engaging in sodomy because this would breach their marital privacy rights nor could the state prohibit married couples from having sexual intercourse because this again would breach marital privacy rights, but at this time the state can forbid people outside of marriage from engaging in sexual intercourse or from other types of sex acts.
However, Dewey I do agree with you that while the U.S. Supreme Court has never held the ability to engage in sexual intercourse is not a fundamental right it is possible to conceive how they would do so. So I do agree with you in part.
Poly
Question mark? I take it you are being very sarcastic. Whatever the sentiment in this quote let me assure you it is reciprocal.
Poly is it just me or are you just arguing for the sake of arguing? It appears to me the two phrases say the exact same thing. “There is not right to…” is tantamount to saying, “no jurisprduence has recognized a right to…as among those protected by the Constitution.” Now admittedly you could respond and say the former statement is broader than the latter in that the former statement is applicable to all fifty states and if only one state found the right to exist then the statement is false and this is undoubtedly true but perhaps the phrase, “There is no right to…” needs to be considered in the context to which it is made. If the discussion is one of Constitutional interpretation or U.S. Supreme Court opinions interpreting the Constitution, then the phrase “there is no right to…” can reasonably be interpreted to mean the “U.S. Constitution does not recognize this as a right,” in which case the two say the exact same thing.
The point I’m trying to make is showing the fault in your argument that any right not specifically delineated can be legislated as “illegal.” You apparently agree with my analysis.
I was speaking as a purely hypothetical. I realize such legislation would probably not pass. What is scarey is the fact that the legal system would support it, should it ever happen.
No sarcasm intended – it was a compliment, pure and simple. I used the optional question mark at the end of a request phrased in interrogative form “May I compliment you…?” was all.
And no, even Dewey will aver that there is a distinction worth making there. “Absence of evidence is not evidence of absence,” after all. According to Dewey, the Ninth Amendment exists purely to give Constitutional validity to rights guaranteed in state constitutions, statute law, and the like. Do you have a right to a safe workplace? Not founded in the Constitution, to be sure, but guaranteed by O.S.H.A. regulations and the statutes validating them. And most if not all State constitutions have an Article enumerating the rights of their citizens.
Wherefore my point – a right claimed which the U.S. Constitution does not explicitly guarantee and on which the courts have as yet remained silent is not “not a right” but rather “a claimed right on which jurisprudence has not found as among those guaranteed in the Constitution.” It may very well be your right as a citizen of Tennessee, Nebraska, Iowa, or Vermont, guaranteed in their state constitution, or under the terms of federal or state statute law.
And I consider very suspect the idea that legislatures have the power to enact whatever they feel like enacting and founding it on some ill-conceived concept of “public health, safety, and morals.” The police power does exist as a state grant of power, to be sure, but I believe there are some very clear limitations on its extent.
Ah! I understand now! Thanks for this very illuminating post. So what you’re saying is that Virginia’s anti-miscegenation law was unconstitutional because the language explicitly mentions specific races. So, if they had wanted to ban intraracial marriage instead of interracial marriage, and had instituted a law using this sort of language:
“A person commits an offense if he engages in marriage with another individual of the same race.”
Then that would have been perfectly constitutional. Yes?
And, by parity of reasoning, if their anti-miscegenation law had used equally circumspect phrasing, such as:
“A person commits an offense if he engages in marriage with another individual of a different race.”
Then that would have been constitutional as well. Yes? Because, after all, the words “different race” are not a racial identification phrase because no race is being identified. The words “different race” constitute a rather general phrase. Not as general as “most people” but general in the sense that they do not identify specifically a white person or a coloured person, so the state would not be permitting a member of one race to do something a member of another race could not.
I hadn’t realized that of two logically equivalent laws, one could be constitutional and the other unconstitutional. It’s so helpful to have people with real expertise in the law help with this legal hair-splitting, because I have a hard time keeping up on my own.
How do you get probably cause to do a search on suspicion of this crime? What constitutes “probable cause”? Would two men holding hands walking into a house constitute probable cause?
I’m not seeing how this law would EVER be enforced short of a police officer “accidently” coming into a house on a false burglary report by some vengefull neighbor.
Utter rubbish. As Blalron points out, per Eisenstadt v. Baird, unmarried sexual activity is indeed protected to the same extent as marital sexual activity – namely, to the extent it affects procreative choices. Similarly, the states can ban nonprocreative sexual activity, per Bowers – the Georgia sodomy law in that case did not have any kind of carveout for marital anal intercourse; it banned all anal sexual activity, regardless of the gender or marital status of the participants.
It’s pretty clear that the key upon which the sexual privacy cases turn is the presence of a decision to “bear or beget a child.” That distinction may be nonsensical, but it’s nevertheless the one the Supreme Court has staked out.
Oh, and shame on you for screwing up the intermediate scrutiny test. Shame on me for not noticing. Kudos to minty for making us both look dumb.
You assume a search would be necessary. I can think of examples which are not “searches” under the fourth amendment where the law could be enforced. For example, a person has no privacy interest in activities performed out-of-doors beyond the curtilage of the home. This is so even if the landowner has erected privacy fences or no trespassing signs (Oliver v. US, 466 US 170). So sodomy al fresco could be prosecuted, even in one’s own backyard (assuming your backyard is big enough to extend beyond the curtilage of the home).
Gorsnak, take a deep breath. Before you get all snippy, you might want to reread the Loving case, the Texas appellate court case in this case, and my posts on page 2. Then, maybe, you can come back and we can have a more relaxed debate.
Are you back?
If you look at the Texas appellate case, Lawrence v. State, 41 S.W.3d 349 (Tex. Crim. App. 2001), you will see how the Court spoke of this kind of extension of the rationale in Loving.
The Court noted that the mere allusion to gender is not a talisman of constitutional invalidity, and “if a statute does not impose burdens or benefits upon a particular gender, it does not subject individuals to unequal treatment.” Just because the term ‘sex,’ is in the statute, it does not elevate one gender over the other. Neither does it impose burdens on one gender not shared by the other. Because the sodomy statute is “gender-neutral on its face,” the court held that defendants had the burden “of showing [that] the statute has had an adverse effect upon one gender and that such disproportionate impact can be traced to a discriminatory purpose.”
Loving was more concerned with the disparate treatment and disparate impact the law had, than the fact “race” was included in the wording. We simply do not have that kind of implications with this law; there has been absolutely no evidence that this law has had, or ever will have, a disparate impact on one gender or the other.
And as I said back when you first posited this,
Now that we’re on page 7, I should be terrified of having to write hundreds of pages of research, but I’m not. Go figure. Not that it is any morally better, but the statute discriminates on the basis of sexual orientation, not gender. I know I have a problem with the rationale behind the stupid law, but that doesn’t change the fact it doesn’t discriminate on the basis of gender.
:shrug: The existence of legal precedent to rule with gross inconsistencies doesn’t make it the case that the rulings aren’t grossly inconsistent. Point out a logical difference between the two cases that would allow one to say that the Virginia statute did rely on racial classifications and the Texas statute does not rely on gender classifications if you wish to challenge my point.
Actually, so far as I can tell the quote
more or less concedes that the Texas statute does indeed rely on gender classifications, but asserts that the difference is that there is no intent to make either gender worse off than the other. This may well be the constitutionally correct position, but it does not change the fact that the Texas statute criminalizes people on the basis of a gender classification. From this it would also follow that Virginia could have banned interracial marriages if the intent hadn’t been to perpetuate racial disparities. Yes?
My argument with Jimmy1 isn’t so much his position that gender as a suspect classification isn’t going to raise the level of scrutiny here - it’s the language he’s using to defend the position. “Every male and female in the state of Texas has the opportunity to engage in oral sex and anal sex whereas in Virigina no white person could marry any black person and vice versa.” Please. One can just as well say that every white person and coloured person in Virginia had the opportunity to engage in marriage, whereas in Texas no man can sodomize any other man, and no woman can sodomize any other woman.
The two arguments are logically equivalent, and each carries precisely the same weight as the other - i.e., none whatsoever.
All right then. So under that reasoning the state can outlaw sex between a man and his post-menopausal wife, since there no longer exists a decision whether to bear or beget a child.
This has the clever logic of the typical fundaloony stance: there’s no discrimination against gay people here, because both straight and gay people are permitted to engage in sex acts with a person of the opposite sex and forbidden to engage in certain of them with a person of the same sex. Yep, and as a male, I have the same right to pregnancy leave as a woman does, in case I should ever get pregnant, right? :rolleyes:
This would make perfect sense – except for DOMA. Remember: “marriage is one man and one woman, the Biblical standard, and if any state extends the privilege of marriage to same-sex couples, the other states can disavow its action, even though Article IV of the Constitution may say otherwise.” In short, gay people cannot marry – at least not each other; they can marry people of the opposite sex if they want to put themselves and their spouses through major heartache, of course – and the court will only protect intramarital sexual privacy. Fascinating logic! When do they plan to nominate that idiot from the ACLJ to SCOTUS?
Well, then, the solution is clear: all a gay person need to is put in writing that he or she is hoping for a miracle – that he or she will conceive a child as a result of the gay sex in which he or she is shortly to be engaged. Voila – instant privacy, and the presumption of a religious belief protected by the First Amendment to boot!
But you’re missing what I’m saying. I’m saying that laws against sodomy are immoral. Texas has no right to pass this law. I do not believe this because of a law. I believe it because I believe it. So the restriction that governments should not pass laws prohibiting sodomy does not come from any law. It matters not whether the people have consented to not doing immoral things; the retort “But I never agreed not to do immoral things” is hardly a legitimate defense against the charge of immorality. Since this restriction does not come from any law, it does not run afoul of the principle that “Any law, including a law against passing certain types of laws in the future, is only justly derived from the consent of the governed”, and yet it does run afoul of “Therefore, laws ought to only be invalidated on bases the people have consented to." Since the latter is therefore broader than the former, establishing the former in no way establishes the latter. It is not that I don’t grasp your argument, but that it is not germane to the issue at hand.
No, the clause “absent that” indicated that you were assuming an absence of a clause preventing regulation of clothing, not the presence of a clause allowing such.
As I said before, this is special pleading. HOA bind only the parties to the contract, but constitutions bind whoever they say they bind. Why? What gives constitutions that special power?
My reading of that article is that there is no essential difference. So if the majority of people in my neighborhood created an HOA, they wouldn’t even need me to sign it. As a government, they get to tell other people what to do. Right?
I have made it clear that I accept the word “impose” as a technically correct word, but one which is being abused in this situation. Seeing as how I accept that it’s technically correct in the sodomy law case, it should be obvious that it is technically correct in the zoning case. It’s a fine line as to where exactly it goes from being technically correct to being accurate and proper, and I don’t see much profit in trying to hash out exactly where that line is. I do, however, see a benefit it getting you to agree, at least in principle, that it can be technically correct but still be abused, even if you do not agree this to be true in this case. Therefore, I chose extreme examples where presumably it would be more clear how the use of the term “imposing” is abusive. I didn’t actually use the words “Nazis” or “Hitler”, whereas you did, so if anyone is invoking Godwin, it’s you. And I don’t think this is silly; I have made a point, and you have not responded to it. In these cases, is the victim trying to impose their will on the perpetrator? I’d like a straight answer.
Of what does this right to be heard consist? Is it simply a repeat of the right to petition for redress of grievances? Or does it require an actual legal hearing? If there’s a tax increase I don’t like, am I entitled to sue for an injunction against it?
Also, you previously said that
Yet the mere threat of being charged with speeding causes harm to me. So shouldn’t the due process requirement come into play the moment a law against speeding is passed?
Technically, it’s not punishment if it is not in response to any act. But if it is simply the infliction of pain or loss, then isn’t forcing someone to go through childbirth cruel and unusual punishment?
Yes, I do. Isn’t there someone a bit fishy about saying “The government can’t do X, but it can pass a law prohibiting people from avoiding X.” Suppose the SCOTUS decided that having criminal being hit by cars was cruel and unusual punishment, and a state responded by saying “Okay, we won’t be involved in hitting our criminals with cars. But if a criminal should ever be in a situation where he can be hit by a car, he is prohibited from doing anything to prevent it.” Criminals aren’t required to be hit by cars, they are simply required to not avoid being hit by cars.
I really don’t see what’s absurd about suggesting that a law prohibiting someone from avoiding something is rather similar to a law requiring to endure that something. Perhaps you have something more convincing than smilies to explain how it is absurd.
Well, I disagree. The people do not have the right to pass a law infringing on the freedom of speech, and so in prohibiting themselves from doing so, they are giving up the power to make such laws, but they aren’t giving up the right, because it wasn’t theirs to begin with.
They probably wouldn’t. So what? I’m not arguing that this law is unconstitutional (although I think a case can be made for that). I’m arguing that it’s immoral.
Saying something is immoral is saying that people shouldn’t do it. Are you really not aware of that?
I don’t think it’s as slippery a slope as you’re making it out to be. One can accept the principle that judges can make ruling on principles beyond the constitution without opening the door to judges ignoring the constitution. You seem to be saying that you don’t trust the justices to make any moral judgements whatsoever. We just give the justices a bunch of rules to follow, they look to see if a law follows those rules, and never mind the question of whether the law, or the rules, are moral. Because we just can’t trust the justices to make those determinations without them becoming dictatorial.
The president is supposed to overrule laws that he thinks are immoral. And that’s just one man; he doesn’t have to get four other people to agree with him. Seems more dictatorial than the SCOTUS. Yes, the congress can overrule his vetoes, but it takes two-thirds. I may be misremembering, but isn’t that the number required to impeach a justice (which would overrule his “veto”). And the president can nullify any penal code (at least any federal one; I’m not clear on whether this applies to state penal codes) by pardoning anyone that violates the law.
I simply do not believe that the state of Texas, morally, has the authority to prohibit sodomy. If you point to a part of the Constitution that gives the authority, my response is that the framers, morally, did not have the authority to grant Texas the authority to prohibit sodomy. And if you say that the articles of confederation gave the framers of the constitution the authority to grant Texas authority, I will say the writer the AoC did not have the authority to grant the authority to grant Texas the authority. And so on. You can point to as long as chain as you want, but eventually you’re going to came to point where there’s someone simply declaring themselves to have the right to tell people what to do. Even if that “someone” actually constitutes 51% of the society (which they never did), that does not change the fact that this authority is self-granted. Because the authority of the constitution is ultimately self-granted, it is limited.
Do student councils choose the principal? Do they have the power to fire him?
Statutory rape is predicated on an assertion of practical harm. Even if the assertion is false, the law is still based on it. As for laws against bigamy, you are incorrect in saying that no has a problem with those laws.
Freyr:
There are some states in which sodomy is a felony. There are also some states in which felons are not allowed to vote. I’m not sure if there’s overlap between those two, but if there is, your hypothetical may not be so hypothetical.
Jimmy1
So are the following pairs of statements saying the same thing?
“There is no tenth planet” vs “Scientists have not found a tenth planet”
“No black actor during this decade was worthy of an academy award” vs “The academy did not find any black actor worthy of an academy award this decade”
“OJ Simpson was not guilty” vs “The jury found OJ Simpson not guilty”.
This has been bothering me for a while and I think I’ve finally figured out why.
Put into other terms, this means that homosexual men and women do not have the right to have sex. Since sodomy is defined as sexual contact other than with a penis and a vagina and the only way homosexuals can have sex is by way of sodomy, doesn’t this essentially say that homosexuals have no right to have sex?
And isn’t that putting an undue burden on some 90 to 95 percent of the population? A burden that is not placed on the majority?
Thanks, The Ryan! That’s an interesting aspect of the law I’d not considered. I know that in some states, being convicted of a sex crime also makes your uneligible for various jobs, to it’s not a stretch of the imagination that making sodomoy illegal can also take a person out of the democratic process entirely.
All the more reason to overturn this stupid, stupid law.
I’ll just assume you meant 5% to 10%. Unless you know something I don’t…
Yeah, this is something that bothers me about anti-homosexuality. Some people think of homosexuality as a disease. Okay, I’m not going to try to convince them otherwise, but if homosexuals are diseased, then I think we should let then make the best of their wretched lives without the joy that come only from plain old missionary sex. There’s so deprived to begin with, why make their lives any worse than it has to be. (And yes, that was sarcastic/hyperbolic).
Although if these laws are overturned, I’ll lose my best example of why the fact that someone has been convicted of a felony, that doesn’t mean they don’t deserve to vote.
