I think Dewey was saying that it also forbids some acts for lesbians, so it doesn’t really discriminate against one gender more than another. I’m not really sure I buy that, though. It seem sto me that it’s just that the discrimination is situational. Sometimes it goes against men, sometimes against women.
Because sometimes, I’m really just that amazingly stupid. Remind me to tell you about the time I accidentally omitted the word “and.”
F***.
[sub]I would point out, however, that one of the dissents in Griswold v. Connecticut described the 9th as a “truism” along with the 10th. And outside of the superfluous reference to the 9th in Griswold, the Supreme Court has uniformly rejected the 9th as the source of any kind of right whatsoever.[/sub]
That, right there, is the choice in the primary issue presented to the Court. I’m guessing 6-3 in favor of the position described by Gorsnak.
I leave it to the gentle reader to decide who the three losers are.
Minty, I see ricksummon beat me to the question I would ask you. Care to clarify? (I concur that the Tenth is effectively a truism – it makes explicit what the original text implies strongly – that the Federal Government is one of delegated powers, though supreme within its sphere of power, and that the states retain the powers they didn’t delegate, except where the states, through the U.S. Constitution or their own acts, whether of constitutional stature or not, set a power aside as not capable of being exercised by them. For example, the power to pass an ex post facto law is in abeyance; the Constitution provides that neither state nor federal government may do so; it’s “retained by the people” in the sense that they have not enabled either tier of government to pass one.
Dewey: Mr. Madison’s remark is quite clear to me:
IMHO, the Ninth Amendment attempts (unless balked by the Bork/Scalia school of thought) to make secure the rights which the FF would regard as basic human rights but which they did not see fit to spell out in Amendments I-VIII, including the permutations from them resulting from 214 years of change and growth in America and in world capabilities. Exactly what those rights are must be discovered by some means. (And here is where one’s jurisprudential philosophy comes into play – are there references to rights not specified in the works of the FF? Can one see an evolution of a concept of particular rights as part of the evolving concept of American freedom, e.g., “privacy”? To a textualist, it of course must be a nullity or a guarantor of statutory and state-level rights, since it says that some rights exist but not what they are.) But I would have no problem in a judge founding the right to marry or the right to travel in the Ninth’s guarantee – they are spelled out in various decisions, but I would hesitate to get particularly thrilled by the formularies used by the justices to arrive at them. Far better to say of them, “This is something that Americans have always concurred is a legitimate right which all people have, subject to the standard protection-of-minors provisions which nearly all laws are construed as taking into account, and it must be among the unenumerated rights which the Ninth Amendment guarantees.”
But I think Madison’s comment makes clear that he explicitly did not consider the original Constitution’s provisions and the first eight amendments as a summary of all rights which the FF agreed were inalienable, and that the Ninth served to protect those others which were not enumerated in the previous text.
Scalia, Thomas, and Rehnquist of course!
I shall praise thee for thine prescience come this June, Blarlron.
Well, yes, he mentioned lesbians and strap-ons, but I don’t see how that’s different from fellatio.
A man can legally penetrate a woman’s anus with a strap-on dildo. A woman can’t. A man can legally allow a woman to penetrate his anus with a strap-on dildo, but a woman can’t.
The claim of gender discrimination isn’t made on the basis that there are fewer things men can do than women, or vice versa. It’s based on the fact that for any given sexual act performed on any given person, you cannot determine whether it runs afoul of the law unless you know the gender of the person performing the sexual act.
Perhaps Dewey could clarify his point, because somehow I don’t think I’m understanding it.
I would appreciate it if someone with greater legal acumen than myself (that is to say, anyone with any legal acumen at all) would comment on Priam’s point about the possibility of a ruling based on lack of equality in the enforcement of non-specific sodomy laws ( though not in this case, obviously). My own guess is that the ruling in this case will strike down the Texas statute on equal protection grounds, but won’t rule sodomy laws to be unconstitutional, leaving it open for states to pass general laws, and then continue to use them to persecute gays and lesbians. Sadly, I don’t know that forcing the state of Texas to be more circumspect in how it persecutes gays and lesbians is any appreciable victory.
Gorsnak, I was just sort of guessing as to what Dewey meant, and he doesn’t need me to speak for him, so I’ll let him make his own clarification, but JFTR, I agree with you on the gender class angle. At least it seems right on an intuitive level to me, but, then, I would have also thought that consenting adults had a civil right to engage in whatever private sexual activity they wanted. I couldn’t believe it when Bricker explained the constitutionality of sodomy laws in a thread on this case a few months ago.
I just hope the SCOTUS finds a sound way overturn this, if not on due process then on equal protection grounds.
Does anyone know if there’s any movement in the Texas legislature to repeal this law?
Diogenes, I had already gathered that you pretty much agreed with me on the gender thing, yours was just the convenient post to quote to make my point. 
Dewey seems to be trying to suggest that the discrimination is somehow on the basis of the preferences of the participants, in spite of the fact that preferences are nowhere mentioned in the statute, and moreover seem to be irrelevant in determining whether the statute has been violated. I think the argument is supposed to be that they’re not discriminating based on the gender of any given participant, but on the combination of genders between the participants, but for my money this is strictly semantic smokescreening, as I believe the phrasing in my posts above makes clear.
Blah. This whole topic ticks me off. It’s one of those things that makes me glad to live in Canada. Trudeau might have been a pompous ass, but he was right on the money when he said “The state has no business in the bedrooms of the nation.”
—It merely says that the government can’t deny an asserted right on the basis that it is not specifically enumerated in the Constitution. It does not, not, not prevent the government from denying an asserted right for any other reason or no reason at all.—
So, the purpose of this amendment is to prevent the government from using a particular basis to deny an asserted right… seeing as it can deny it with no basis at all? That doesn’t seem to make a lot of sense.
While I concur that the ninth is by no means a sound place to found anything at all, the above interpretation of the ninth seems a little hard to believe.
Actually, it makes perfect sense. It prevents the federal government from using the enumeration of certain rights in the Constitution to negate rights granted under state law, or even rights granted via legislation of Congress. No saying “Hey, you can’t recognize a right to gay sodomy under your state law–that’s not in the Constitution!”
Recall that at the time the Constitution was drafted in Philadelphia, they intentionally left out any kind of guarantees of individual rights, under the theory that by even getting involved at all, they’d be stomping on the very rights they were trying to protect. Thus, when it became clear that they were indeed going to have to put that stuff in the Constitution via the Bill of Rights, they inserted the 9th as a means of clarifying that Amendments 1-8 are not intended to be exclusive. And so they’re not.
This sounds very much like you are arguing in favor of ‘original intent’. The Founding Fathers meant for the Ninth Amendment to mean such and such, therefore that is what it does mean.
Is that what you are saying?
Regards,
Shodan
Dewey, not that I mean to insult the memory of Patrick Moynihan, but he’s no Texas Penal Code.
"On the other hand, Texas has every right to prohibit sodomy. This is permitted by the Constitution."
I don’t care about Texas’ “right” to prohibit sodomy or whether the constitution permits it. The state’s role is to have certain guidelines for the organized life of people as a culture. To that end, every law and every rule needs to weigh the gains to society against its ill effects.
There is nothing good that can come out of the state telling people how to behave in their bedroom and that’s why that law and every “legal” justification for having it in the first place needs to be removed, imho.
Let me begin by saying this isn’t a great argument I’m making – I’m playing Devil’s advocate here, which is to say I think this is a plausible argument but not necessarily a winner.
The point is the law is not couched in gender-organ-specific ways; it criminalizes genital-oral contact, not “fellatio” (i.e., it also encompasses cunninglinguis) and genital-anal contact, which I suppose theoretically with some gymnastics involved could be accomplished by determined lesbians. (Mmmmm…gymnastic lesbians…)
It isn’t the sex of the accused, but the sex of the recipient that determines if an act is criminal. Courts have occasionally been more receptive to that kind of discrimination, see, e.g., Michael M. v. Sup. Ct. of Sonoma Cty.. 450 US 464, upholding a California statutory rape law that only criminalized intercourse with an underage female, holding the law bore a “fair and substantial relationship” to legitimate state ends --preventing teenage pregnancy and risks of intercourse-related physical injury.
Now, obviously, “legitimate state ends” is going to rest in the eye of the beholder; but if safeguarding traditional notions of sexual morality are one such end, then the act may well survive scrutiny. And FWIW, there is language in Bowers that seems to indicate that this is a legitimate state end. Granted, the court as currently constituted may find otherwise, but still…
Stupid Windows clipboard… :mad:
Well, then, the obvious solution would be to change the law via the ordinary legislative process. I’d certainly back you on that.
But this raises an interesting point. Suppose the Court invalidates the Texas statute on equal protection grounds, essentially saying you can criminalize sodomy, but as per Bowers you’ve got to make it apply to heterosexuals and homosexuals alike.
Well, the court can’t re-write the statute, so to comply with that ruling the Texas Lege would have to re-write and re-pass the law, essentially requiring a public debate on the topic.
Do you think, even in a conservative state like Texas, that in this day and age an act criminalizing such conduct could pass? I’m not sure it would. Let’s face it: inertia keeps a lot of these laws on the books – they are very old, rarely enforced, and thus not in the forefront of people’s minds. Putting that law on the books anew is a whole 'nother ball of wax.
Thanks for your opinion.
The debate is concerning constitutional rulings, however. I agree that the law should be removed, and since the Texas legislature wrote it, the Texas legislature should repeal it. If they fail to do so, the citizens of Texas should elect legislators that will.
But merely because the result is what you seek does not mean that the method used to get there is correct.
For example, how would you feel if the President announced that, by executive authority, he was curtailing enforcement of this Texas law, and he would send in the Army’s 10th Mountain Division from Fort Drum, New York, to ensure that Texas sheriffs and police officers did not enforce the sodomy laws?
We’re discussing whether this law is violative of the federal constitution. It’s not particularly useful to declare that because you don’t like the law, any finding or action that removes it is OK with you. I don’t like the law myself, but I would oppose the Supreme Court finding that there was a constitutional right to sodomy when there now isn’t.
- Rick
IANAL, so here’s my question:
My understanding is that “Roe v. Wade” is based on an implied right to privacy found in the US Consitution. Why wouldn’t this implied right to privacy extend to consenting adult homosexuals having sex in the privacy of their home?
Read Bowers, linked to earlier in this thread.