Whoops! My bad! Thanks for catching that!
Hey, I didn’t write the cases – take it up with the Supreme Court.
This, I think, is the crux of the problem.
You’ll get very little opposition on the proposition that this law is wrong, should never have been passed, and that the legislature should repeal it at the first available opportunity.
Where you will get opposition is on the notion that the courts should have the power to do strike the law down absent some reasonably clear conflict with some provision of the constitution.
To put it more simply: you claim the law is immoral, and that a judge sharing your view should be able to strike the law down on moral grounds even absent a textual constitutional conflict. Upon what grounds do you claim your particular moral world-view is correct? Are you God? Isn’t it entirely possible that you could be wrong? Why should your particular view of the world bind the hands of the rest of society?
Suppose a judge felt strongly that the age of 15 was an appropriate age for a young person to consent to sexual intercourse, and that it was immoral to deny them (and their partners) the power to make sexual decisions after that age. Would you feel comfortable with that judge striking down any statutory rape law that placed the age of consent at 16 or higher?
Laws are struck down for being “unconstitutional,” not for being “immoral.” And for good reason.
You misunderstand. It certainly IS discrimination against gay people. But it IS NOT discrimination against a particular gender. Whereas in Loving, the anti-misengination law was meant to and had the effect of continuing the discrimination against the black race, this case has NOTHING to do with the discrimination against a particular gender.
Oddly enough, you have some support when you discuss the gay marriage laws. The Supreme Court of Hawaii, in Baehr v. Lewin, followed your and Gorsnak’s rationale and ruled that a ban on gay marriages was a violation of the State Equal Protection Clause against gender discrimination. They relied on the rationale in Loving. However, other courts in Kentucky and Washington (IIRC) and others have rejected the same arguments. Also, Baehr has not been appealled to SCOTUS which, I’m sure, would have rejected the logic.
In my opinion, arguing discrimination on the basis of sexual orientation is discrimination on the basis of gender is an unwarranted and unteneable extension of the rationale in Loving.
You seem to be confusing discrimination on the basis of gender classifications, and discrimination against a gender. Obviously no gender is discriminated against by the Texas statute, but just as obviously the Texas statute discriminates on the basis of a gender classification. Hell, it doesn’t even mention orientation. How can it discriminate on the basis of orientation? It uses gender as a basis to discriminate against an orientation. In this regard the Texas statute differs from Virginia’s anti-miscegenation law, in that Virginia’s statute used racial classifications to discriminate against a race. So any defense of the Texas statute against charges of using the suspect gender classification had better be focused on what it is being used for, and not that it is being used, if they want to have any logical weight. Saying that the Texas statute doesn’t discriminate on the basis of gender is just confused.
I do see your point. However, I can make this claim (rearguing points made above in a more logical, coherent order).
The Texas law in question in essence makes three acts forbidden, in the absence of a person who has undergone SRS as a partner in the acts:
[ol][li]commission of fellatio by a male[/li][li]commission of cunnilingus by a female[/li][li]commission of anal intromissive sex by a male on a male[/ol][/li]
In writing this list, my presumption is that males are equipped with penises and females with vulvas and vaginas – the “normal” condition of human physique. Not having checked back with the law itself, I’m unsure if anilingus is also forbidden by the law, but it is a sidelight to the questions I wish to raise here anyway.
Now, it may be reasonably presumed that only a gay or bisexual person would have an interest in committing one of the above acts, at least on a regular enough basis to be interested in whether or not it is a “right” or deemed illegal. But that is not a step that need be taken.
A perfectly straight Texan male with much more sexual interest in the Cowboys cheerleaders than in any man is forbidden by the law from committing fellatio, should he ever decide he wishes to do so – yet any woman in Texas is perfectly entitled to commit the same act, should she develop an interest in doing so.
Likewise, that man is entitled to commit cunnilingus upon any woman who might welcome his attentions, but no Texan woman is entitled to do so – she is instead forbidden by the law from doing so.
Finally, assume two persons of opposite sex who enjoy being anally penetrated – one male, one female. The woman is quite entitled to find a willing man and have him do her; the man is forbidden by law from doing so.
Please note that whether or not someone is particularly interested in committing a specified act is not in question – the question is whether or not they have the legal right to do so, should they happen to so choose.
And by that analysis, with solely the judicial recognition that men and women have different genitalia, the Texas law is quite explicitly discriminating on the basis of sex – not of sexual preference. The fact that straight people might have no interest in committing the acts proscribed is immaterial – they have lost the privilege to doing so on the basis of their particular gender, while persons of the opposite gender retain the privilege of doing so.
To quote an old aphorism (Matt_mcl, do you know the source?), “The law, in its majestic equality, extends to millionaire and beggar alike the privilege of sleeping under bridges and seeking alms with which to buy a crust of bread.”
The offenses are distinguished in the law in question on the basis of gender, not on the basis of sexual orientation. And as such, they call for extraordinary stict scrutiny.
Let me say I can see the argument made by Polycarp.
The Texas statute is gender discrimination because the law is premised upon the sex of the partner. If the partner is of the same gender, then the law is applicable to them. I can see this side of the argument. I am just questioning if the U.S. Supreme Court will consider this as gender discrimination. Typically all instances of gender discrimination by the U.S. Supreme Court has come in the form of one gender possessing under color of law a privilege or opportunity to do something while having it denied to the opposite sex for no other reason than gender. I can’t think of a case considering it to be gender discrimination if some males are permitted to engage in anal sex while other males are not or in the alternative some males can have oral sex while others can’t or some females can have oral sex while others cannot. Normally gender discrimination occurs when one gender is granted a privilege or right while the other opposing or different gender is not. For example a statute permitting males to vote while denying this right to females is an example of facial gender discrimination and in such an instance the males are granted a privilege or right while women are not. The women are burdened for no other reason than their gender. Another example would be state laws prohibiting the opportunity for women to be admitted to the bar and this again would be facial gender discrimination as women are burdened for no other reason than their gender and males are permitted an opportunity to do something denied to women.
However, some seem to be of the opinion that if in one class of sex, such as the class of males, some males are given an opportunity to do something while other males are not, then this constitutes as gender discrimination. I wonder if discriminating within the same sex against the same sex is likely to constitute as gender discrimination?
Polycarp can you think of a case, preferably a case by the U.S. Supreme Court, where they have considered this to be a form of gender discrimination? Of course it does not necessarily have to be on point but perhaps the Court said in dicta this may constitute as gender discrimination? When I think of gender discrimination and those cases by the U.S. Supreme Court dealing with the subject, again notwithstanding a case to the contrary that I am not aware of, comes in the form of one gender, males, being capable of doing something other females cannot for no other reason than they are a male.
Yeah Minty I did screw up the intermediary level test. The test I gave was of the lowest level. Intermediary scrutiny is going to require a substantial state interest and the means chosen to reach those objectives are not to remote, overly broad, but reasonably calculated to achieve the end. You can tell we did not have any Fourteenth Amendment Equal Protection Clause questions on our final, Not One question. Hey nobody is perfect.
However, I question if they are even going to get an intermediary level of scrutiny or strict scrutiny. There is a threshold issue and it is whether or not this law is gender discriminatory. I do not even know if this was an issue argued before the U.S. Supreme Court in oral argument? Polycarp are you aware of whether or not this was an issue argued before the Court? Does anybody know?
Easy Dewey I included a disclaimer indicating unless there is a case out there I can’t recall. Eisenstatd v. Baird is a case we covered in my Con Law class but it was an note occupying less than half a page. Nobody here is all knowing Dewey nor can they be expected to remember every single note case they read in law school and you don’t have to take the opportunity to slam an individual with an exclamation point for not being omniscient or failing to have a photographic memory. Espcially when the individual states specifically unless there is a case they are missing or can’t recall dealinlg with the issue. It is not as if you knew of this case and if you did it was not one that readily came to mind since you certainly could not cite to it when you initially responded to my post.
I think Blalron’s point that the Eisenstadt case is not as narrow as you suggest is a good one. If you are using this case to argue there is a right of sexual privacy not only to married couples, Griswold v. Connecticut, but also to heterosexual couples outside of marriage via Eisenstatd, and this is the point you have to be making considering you stated the opposite is "utter rubbish " then Blalron would be correct with the inference that Eisenstatd is not this narrow but rather stands for the proposition a sexual right of privacy exists for heterosexuals and this would protect a husband and his wife who is post-menopausal. This would make a lot of sense and Eisenstatd must stand for this proposition. I think it can be said the case operates off of the assumption that heterosexuals can, freely from the state, engage in acts that lead to procreation.
What good is the decision in Eisenstadt if the state can accomplish its goal not by outlawing the use of contraceptives but by rather regulating the sexual activity between heterosexuals? What if the state went back to the drawing board and stipulated sexual intercourse is forbidden among unmarried people unless it is with the intention to have a child? This law has a similar effect to denying the use of contraceptives with the goal to be achieved or promoted is pregnancy. The Supreme Court opinion seems to validate the notion that one can freely engage in acts that lead to procreation but then deny the end result of procreation from happening with the use of the contraceptive. Hence, I don’t think my hypothetical law would fly in light of Eisenstadt if I am correct in stating what the case stands for.
“The right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmetnal intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” I construe this language more broadly than you do. This phrase would carry no weight with it nor have any value if it did not include for protection from interference from the state the decision of whether or not to engage in conduct that leads to procreation regardless of whether or not one can actually get pregnant or desires to get pregnant. Contraceptives are designed to prevent pregnancy resulting from sexual intercourse and the decision assumes heterosexuals can have sexual intercourse.
Not only does it assume this decision but it also states it is protected by the right of privacy. Choosing not to engage in sexual intercourse is more effective than the use of a contraceptive. Yet, the state can’t interefere with an individuals right to choose the use of a contraceptive to prevent pregnancy necessarily implying they can engage in those acts that lead to procreation and then take steps to keep procreation from happening, then similarly the state can’t keep heterosexuals from having sex unless it is their intention to get pregnant as this is similar to outlawing the use of contraceptives. This statement issued by the majority is broad enough to keep the state from interefering with heterosexuals decision to have sex. If this were not true, then all the state of Massachusetts would have to do is regulate when people can or cannot have sex outside of marriage to only those instances where there is an intent to get pregnant, rendering this decision pointless. This case, and that quote, stands for the proposition that one can engage in acts leading to procreation because if not, then what good is the decision to protect one’s decision to use birth control because one decides they do not want to get pregnant if the state can proscribe the very thing done that can lead to pregnancy to only those instances where pregnancy is intended? It would truly be a pointless case. Hence, under this rationale the state would be prohibited from regulating sexual activity between a husband and his post-menopausal wife and I think Eisenstadt does stand for this rationale.
Thanks Blalron.
However, Gorsnak you are comparing apples to oranges when saying the statute in Loving v. Virginia is similar to the Texas sodomy statute.
Not only did it mention race but its entire scheme was based upon race and nothing more.
This is not exactly on point with the Texas statute. This is an example of blanket prohibition and the Texas statute is not a blanket prohibition. This prohibits everyone from doing something and the Texas statute does not prohibit everyone from doing something. The Texas statute is then different in this respect than what your quote indicates.
Probably not really going to matter. At least not to the U.S. Supreme Court. The statutory scheme is still based off of “race”. The facial language of your example operates in a similar fashion as the statute in Loving. v. Virginia. Under your examples nobody from the caucasion race could marry outside of the caucasion race for no other reason than they are caucasion. Under your example no black person would be permitted to marry anybody other than another black person for no other reason than they are black. Hence, your examples are not facially race neutral and the U.S. Supreme Court would not likely consider a statute of this nature to be facially neutral.
As I said before does not matter and you are comparing apples to oranges not to remissed in mentioning you are distorting the hell out of my reasoning. The statute is still a blanket prohibition. It is a blanket prohibition in that all races are forbidden from doing something because they belong to a particular race. This is different from the Texas statute because there is no blanket prohibition. The Texas statute is not forbid all males and females from doing something. Hence, this is just one distinction.
The next distinction is your scheme, as noted before, is nothing more than predicated upon “race”. People of the same “race” must marry within their “race”. That sounds like a facially race conscious statutory scheme to me. It states all white people must marry white people. All hispanics must marry hispanics. All blacks must marry blacks. All asians must marry asians. Hmmmm…If it looks like facial race discrimination, it operates like facial race discrimination and the scheme is based upon race, then it is a facially race conscious statute and can’t be said to be a racially neutral statute. The Texas statute is not facially gender biased, in my opinion, because it is nothing like your example. It is not stating males must do X, while females must do Y, and neither can do Z by virture of the fact they are male and female. Yet your statute does this in that white people can only do X (marry white people) and hispanics can only do Y (marry hispanics) and neither can do Z (marry outside their race) for no other reason than their race. The Texas statute rather says All people, M and F, can engage in O and A, assuming all other requirements are met, such as age restrictions like no 18 year old with a 15 year old. The two statutes are not the same.
Interesting you say this because I could promise you are Danny Glover off of the MCI commercial where he says an apple and orange look the same. Did you write that script for him?
The two statutes are not logically equivalent. The distinctions are there and I have noted what they are. You will come up with some other example and there will probably exist more profound distinctions as to render one not capable of being compared to the other.
All jokes and sarcastic assaults aside this is not legal hairsplitting. Well maybe it is legal hairsplitting but you can blame the U.S. Supreme Court for this hairsplitting. They do it all the time and this is perhaps just one more example of it.
You know, you really confuse me. You seem intelligent, and then you go say something like this. My suggested language was the Texas statute, word for blasted word, simply replacing “deviate sexual intercourse” with marriage, and gender with race. They are precisely equivalent, and your tortured logic attempting to demonstrate the opposite could all be transposed to show the Virginia statute was fine, but the Texas one is a problem. Where was the blanket prohibition in Virginia?!? Everyone could marry, just their partner choice was limited. Just as in Texas everyone can have oral sex, just their partner choice is limited. I can’t begin to fathom why you can’t see the obvious equivalence here, but I’m done trying to convince you. That a man can look at two oranges and declare one an apple calls for psychiatric help, not reasoned argument.
Dewey, you may think the Courts have to much power, but I don’t. When compared with the President their power is rather limited.
I think the Chief Executive has too much power. He can “nullify the will of the people” by pardoning convicted criminals. And his reasons for the pardon could be anything. He doesn’t even have to write a lengthy opinion that concurs with 4 other people and has a constitutional basis. He can simply say “I want to pardon this guy, I say so and that’s that” What checks this ability? Elections? Nope. Once he is on the last leg of his second term there’s nothing to stop him from going pardon crazy.
He can veto the laws passed by a majority of congress simply because he feels like it. Again, he doesn’t have to justify his opinion. He can just write “veto”. It takes two thirds vote to override a veto.
He can send us into military conflicts without the approval of Congress. Sure, if you could get two thirds of congress to cut off his funding AFTER he sends in the troops that could limit him, but good luck trying that.
The President also controlls all our nuclear weapons. NUCLEAR FRICKIN WEAPONS.
All this power is in ONE man who isn’t even elected by “popular majority”, he is appointed by the Electoral College who are not obligated to vote the way they pledged to.
So your talk about overriding the “will of the majority” rings hollow.
What do you think of “cohabitation” laws? What about “fornication” laws? Some states make it illegal for an unmarried man and woman to have sex or even sleep in the same bedroom.
I wish to god that those laws were actually enforced on a consistant basis instead of on rare occasions where it could be used to threaten people.
I wish there were actually “cohabitation” stings where police storm into houses and catch grown men and women having sex. But it isn’t going to happen. The very fact that these laws are seldom enforced goes to show that the State does not take them seriously.
If the State doesn’t take all their laws seriously and enforce them consistantly, isn’t that denying their citizens the Equal Protection of the Law?
Are you seriously comparing electoral methods and presidential powers specifically established by the text of the constitution with the judicial seizure of powers not conferred by that document? Have you bothered to read any of my posts? Can you hazard a guess as to why I would say the former is acceptable while the latter is not?
Jimmy1: if “utter rubbish” gets your dander up, consider switching career tracks. In the real world of practicing law, your arguments will be called much worse, sometimes with justification, sometimes not. You gotta have a thick skin to do what we do.
DCU
[quote]
Upon what grounds do you claim your particular moral world-view is correct? Are you God?
quote]
We aren’t going to get into that “how can atheists have morals” line of discussion are we?
It seems to me that you are saying that I should not propose that someone take action on the basis of my moral beliefs because then someone else might take action on moral beliefs which I disagree with. This sounds very odd to me. I should ignore my own morality, because there are people with other moralities, and I would like them to ignore theirs?
Jimmy1
You have not explained what the distinction is. All you have to do is come up with an action which would be legal under one law, but illegal under the other. That’s it. No complicated legal arguments needed. Just name one action.
In my view, Congress and the President are the ones “seizing” power not authorized to them nearly all the time.
I think the Judiciary is not doing enough to limit government power, they bend over backwards in deference most of the time. Look at how much the Commerce Clause and the “neccesary and proper” clause has been abused.
Congress took a giant crap on the Patent and Copyright clause (“For limited times”) a couple of years ago, by extending copyrights from 70 years after the death of the author to 90 years after the death of the author. They succumbed to powerful lobbying interests. The Supreme Court sided with Congress in Eldred vs Ashcroft.
What is the basis Gorsnak for the Texas statute? Is it really a statutory scheme driven by gender, as race in the Virginia statute, or is it rather focused upon sexual preference as opposed to the Virginia statutory scheme based upon race or race classifications? The Virginia statute also infringed upon a fundamental right to marry whereas the U.S. Supreme Court has already held there is no fundamental right for same sex people to engage in sexual conduct and as a result the Texas statute is not infringing upon any fundamental right given to homosexuals by prohibiting them from engaging in same sex conduct.
Now the question is what is the basis by the state for proscribing acts of sodomy? It is based not on a particular “gender” or as Hamlet exclaimed
Actually since Hamlet has been making the same points I have I will just defer to bits of his post:
But rather the basis for Texas proscribing acts of sodomy is premised not upon a particular gender, as I have reiterated time and time again, but as Hamlet observed:
This is not the same to say the statute does not focus upon gender but as I have stated before it is not an instance where one gender is the target of the discrimination while the other is not unlike the Virginia statute where it was targeted towards oppression of blacks. If you had actually taken the time to read closely you would have found a prolethra of examples and statements offered by myself illustrating this point. I have said it time and time again the statute does not permit one gender to do something the other gender cannot, in other words, it is not burdening one gender, which is tantamount to saying the burdening of one gender is not the focus of the statute which is to also say the focus of the statute was not to target a specific gender. Whereas the statute in Loving v. Virginia was designed to show the supremacy of one race, as the Court noted the statute was designed to show “White Supremacy”.
The Texas statute is not designed to show the Supremacy of Male or Female.
Now the reference to gender in your argument and Poly’s is for no other reason than to prohibit what the state can already prohibit, which is homosexual sex acts. Hence, this statute is again different from the statute in Virginia because the entire and sole purpose in the statute was its focus upon race, to keep the races separated, and demonstrate the supremacy of the White race. However, the entire purpose of the Texas statute is not entirely or solely focused upon gender for the purpose of separating the two genders and show the Supremacy of one gender over another. Rather the focus upon gender is for no other reason than out of necessity to proscribe same sex acts. The Texas statute is doing what Scalia believes all states can do and this is to single out homosexuality for disfavorable treatment and to do this requires a focus upon gender but this does not kill the statute for reasons I have noted in this post preceding this paragraph.
The statute prohibits acts of homosexuality, something the Court has previously held to be okay in Bowers v. Hardwick. Now of course you will probably argue as Polycarp and state the basis is by focusing on gender classifications and this requires, once again, to focus upon “gender” just as the race classifications in the Loving v. Virginia statute were based upon “race” or the color of one’s skin.
However, I agree with Hamlet that I do not think the U.S. Supreme Court will consider this to constitute as “gender” discrimination and would also reject any comparison between the Virginia statute in Loving to the statute in Texas. Why? Because the statute in Loving v. Virginia infringed upon a fundamental right and the Texas statute does not. The statute at issue in Texas was not designed to discriminate against a particular gender nor was this the intent of the legislature, whereas the statute at issue in Virginia was designed for no other purpose than to discriminate against black people. In order for the state to do what Bowers v. Hardwick permits it to do requires a focus on gender but it is incidental and different than the focus upon race in the Loving v. Virginia statute primarily because the goal in Loving v. Virginia is not a constitutional one, whereas the one in Texas can be, at least according to Scalia, when done to regulate or in pursuance of the sexual mores of the community relying upon Bowers v. Hardwick. These are the reasons why they are different.
Yeah do you need one? I can get you one for a discount rate. 
Dewey it didn’t really get my dander up. It is just not something you want to read very early in the morning shortly after waking up to a house full of relatives annoying the hell of you and each other. I look at it now and it doesn’t bother me.
Okay, the Court, by a majority of five to four, one of whom recanted his opinion in retirement, did say that states can proscribe homosexual acts. Fine. And the wording of that statute is to make illegal acts by one sex which the other sex can perform legally – regardless of what its intent may be.
Unless, of course, you live in a world where men have labia majora and women penises as a matter of course. :rolleyes: I don’t think it’s going to an extreme to expect SCOTUS to take judicial cognizance of what most kids figure out around the age of eight or earlier, about the difference between boys and girls “down there.”
And if marriage is a “fundamental right,” then why did Congress and about 30 states pass DOMA acts forbidding these gay people on whom you see this act focused from marrying? Lemme guess: it’s because their sex life in marriage would be “immoral” by the same nebulous standard that enables Texas to pass this law, right? And, of course, this has nothing to do with anyone’s religion – it’s “just something everybody knows,” right?
Honest to God, Jimmy, I’m not arguing for the sake of arguing – I really am trying to see the logic in your POV, and missing it altogether. A law that makes reference to “persons of the same sex” and to the genitalia of said people “has no basis in gender”? Compared to that argument, the conceptualization of transsexual gender identity is “Run, Spot, Run” in clarity.
Poly I do not think the Texas statute is gender discriminatory. It is not seeking to discriminate mutually exclusively between males and females. Yes the gender of the partners must be taken into consideration to assess if there has been a violation of the statute but I do not consider this gender discrimination. Prohibiting a male from engaging in sex acts with another male is gender discrimination while permitting other males to do these sex acts with a female is gender discrimination? What gender is being discriminated against? Males are being discriminated against in comparison to other males and this is gender discrimination? Is there a U.S. Supreme Court or a federal appeals court opinion indicating this constitutes as gender discrimination?
Or is Hamlet correct when he opines that this is not the type of gender discrimination the U.S. Supreme Court has in mind nor are they likely to adopt this particular type of definition.
It must be admitted the statute does have to take gender into account. I came to this realization on Friday but I just really wanted to argue the opposing side. You know the saying, there is value in arguing the opposite side of an exchange even when it appears this is the side which is not likely correct. Well it didn’t work out to well. I don’t think there is much of a defense to be made at least if there is one I couldn’t think of it and I spent some time doing so. But as Gorsnak noted they aren’t really any good ones and I don’t think any exist.
However, I do think it is not the type of discrimination the U.S. Supreme Court is looking for despite the fact the statute must take gender into account in order to effectuate its end goal. I also think there are some differences between the Texas statute and the Virginia statute in areas unrelated to the issue of whether or not gender is facially present.
Romer v. Evans and the rationale underlying it in which O’Connor and Kennedy joined the majority could be used as the final chapter to completely undermining Bowers.
Hamlet may not have realized it but his argument, and mine, potentially can fall prey to Romer v. Evans. There are some vast differences in Romer v. Evans and the facts here but I think some people were surprised, at least Scalia, Rehnquist, and Thomas certainly were shocked, when Romer v. Evans was decided because of Bowers v. Hardwick.
However, that rationale could surface again in this case.
So you disagree that the 1964 Civil Rights Act was inappropriate legislation from a constitutional perpective? After all, the Commerce Clause was the entire basis for Congress’ power to pass that law. If you believe the “affects test” is appropriate – and if you think the 1964 Act was good law, you must think that is the right test – then you must believe that most modern-day Congressional action under the commerce clause is perfectly legit.
Along similar lines: do you think Congress can pass a law limiting firearms around schools, assuming they make appropriate findings of fact? Why or why not? **
And your point is what, exactly? Eldred was, to put it mildly, an extremely arguable case. The Constitution clearly gives Congress discretion over the length of copyright terms. It is very difficult to come up with a principled interpretation that “limited time” means a specific maximum number of years. On the other hand, “limited time” must mean something. This is just a difficult interpretive problem, one properly within the court’s power to hear, and frankly I think the courts would be acting appropriately no matter how they decided the case.
At any rate, the expansion of copyright terms isn’t an usurpation of power on the part of Congress – the copyright clause gives them the power to designate those rules. It isn’t like they just made up some “emanations and penumbras” nonsense to give them that power – the copyright clause is right there in black and white. The mere fact that you would like to see that clause construed more narrowly does not translate to Congress acting outside of their constitutional mandate.
No, and I don’t really see how you get that from my post. My use of the word “God” as not used in the sense of God as the source of all morals, but rather as a rhetorical question asking the poster why he was so certain his particular moral worldview was correct in a metaphysical sense.
To clarify: atheists can have morals, just as Christians and Jews and Muslims and Buddhists can have morals. However, none of those groups or individuals within those subgroups can say on any sort of principled basis that their moral view is 100% absolute metaphysical capital-T Truth.**
I have no problem with you persuading others that your particular moral view is correct. By all means, make a moral appeal to the voters for the kinds of laws you want, convince them that you’re right, and get those laws passed. I am not bothered by, and indeed I encourage, that kind of policymaking (within textual constitutional grounds, naturally) – not because your morality is necessarily correct in a metaphysical sense, but rather because you have a mandate from the people.
On the other hand, if you’re going to bind the hands of your fellow man in shaping society on the grounds of a law being “immoral” (rather than “unconstitutional,” i.e., on grounds outside the text of the constitution), you’d damned well be sure that your moral worldview is objectively correct in the metaphysical sense – and I don’t think that is something any human being can legitimately claim.
Polycarp and Gorsnak,
I’m not sure I can add anything to what I’ve already said. The analogy to Loving simply doesn’t apply to the discrimination in the Texas Sodomy law. Throughout the entirety of the Loving case, the majority opinion referred to the statute as having the purpose, and effect, of continuing “invidious racial discrimination.” Rather than relying on the traditional Equal Protection analysis of whether it treats races different, the Court looked at the motive and effects of the law, and extended the Equal Protection Clause to them. The Court in Loving did not hold that a prohibited classification that effects both sides equally (white & minority in Loving, or man & woman in this case) was illegal discrimination. It was only illegal when the classification was a vehicle for invidious racial discrimination. SCOTUS has continued to hold that not every classification on the basis of gender is unconstitutional. The classifications in the Texas sodomy law do not have the purpose, nor is there any evidence they have the effect, of continuing a invidious discrimination on the basis of gender. Certainly it does on the basis of sexual orientation, but not of gender. In order to get the Court to find that the Texas statute discriminates on the basis of gender, you would have to convince the Court that heterosexuality is a tool of male domination. There are some scholars who believe it is, but getting SCOTUS to buy it expecting Rhenquist to be wearing a dress under his robe.
Gender-based classifications have been allowed by SCOTUS, including in the areas of regulating sexual relations (male rapist v. female rapists), protecting the public interest in decency (showing nipples in public). Laws regulating who can go into which public bathroom or locker room certainly can involve the use of sex as a classification but do not constitute impermissible sex discrimination.
I guess it boils down to a distinction between classifications and illegal discrimination. In Loving, the classifications were a ruse to hid illegal discrimination, but the Texas sodomy law simply doesn’t.