Crap. One of these days I’m going to actually preview for content purposes not just a quick check for coding errors or accidental smilies.
Enjoy,
Steven
Ok, so if heterosexuals can engage in non-procreative sex, why can’t homosexuals do the same thing?
Ah, you might say. At least the heterosexuals have a CHANCE of procreating, so it’s protected.
BUT WAIT! What about sterile heterosexual couples? What if the man has a vasectomy and the woman has gone through menopause? Why is their right to engage in heterosexual relations protected but homosexual relations are not?
If you are arguing that “that’s the way things have always been done, it’s deeply rooted in our history”. I don’t buy it. Laws against interracial marriage were deeply rooted in our history, yet they were still subject to constitutional attack in Loving v. Virginia. Or segregation in Brown v. Board of Education. Blind imitation of the past is not a reason to continue an injustice.
Apologies in advance for posting from ill-informed, vague memory.
In the Durham, NC newsweekly The Independent, I read a story some fifteen or so years ago about a rape trial in which the court found out that a woman had performed fellatio on a man. The man was found not guilty of the rape charge, but the judge, who was convinced the man was guilty, sentenced him to several years in prison using a North Carolina sodomy statute.
Has anyone else heard of this case? Would it have predated the court’s recognition of a right to control procreation?
Daniel
—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.—
But… they can just negate them in any case, so what’s the point of denying them a particular justification?
—Roughly speaking, the courts have recognized a fundamental right to control procreation, which requires the government to steer clear of bedroom stuff for heterosexuals.—
On what is this “right” based?
The Pursuit of Happiness of course 
Enjoy,
Steven
I realize you’re kidding, mtgman, but enough people make this mistake that it bears pointing out for the benefit of any lurkers out there: “life, liberty and the pursuit of happiness” appears in the Declaration of Independence, which is not a source of judicially enforceable rights – the Declaration is NOT the Constitution.
(I remember on the first day of law school, the first girl called on in Con Law was asked some question or another, and replied with the quoted language. The professor’s response…well, let’s just say that she did not have a good first day.)
One of the numerous AP articles on the SCOTUS consideration of Lawrence v Texas mentioned that the police came to the scene in response to a false report of a man with a gun – but it was not a setup; a vindictive neighbor with issues was suspected of making the false report. I’m not sure about the background with Griswold, though I gather it was in fact a setup.
Dewey, I know you’re right, but I find Mtgman’s reasoning quite compelling.
If it isn’t a setup – wow, are those cops assholes. I’m just trying to visualize how this whole thing might have gone down. I mean, most people, cops included, don’t bust in on a couple doin’ the pokey-pokey and immediately think “hmmmmm, this is a violation of the Penal Code.” Most people, cops included, say “oh…sorry” and leave, closing the door behind them, especially once they establish that the only thing in the room that could go off with a bang is inside another guy’s ass.
Putting aside questions of constitutionality – yeah, it’s illegal, but so is going two miles over the speed limit. It isn’t like there’s a bathhouse being run over there, or they left a window open or something like that. Show some discretion, f’rcryinoutloud.
I want to post here just in case I can get Hamlet to write me a paper.
OK, OK! You got me. Howzabout we compromise on “the blessings of liberty”.
Enjoy,
Steven
On Preview: Actually in a previous thread we had a long discussion about the chain of events that would have had to have occurred in order for this “offense” to have been prosecuted in the first place. It starts with asshole cops who, upon not finding an armed burglar, decide, instead of just saying “excuse us, we’ll go kick the crap out of your neighbor for calling in a false report because he’s a vindictive homophobe”, to arrest the guys. That’s pretty much what started the whole mess. I guess the DA could have refused to press charges, but it’s a Class C misdemeanor(lowest crime on the books, 500 dollar fine MAX, on par with traffic tickets). The guys pleaded “no contest” which pretty much forced the judge to find them guilty. It’s this point that it looks like the legal firm that currently represents them got wind of their case and the crusade began. It could have been surreptitously dropped by the legal system at a couple of points, but it wasn’t and once the crusade started the only place it was going to stop was the SCotUS.
Blalron: I am not arguing at all; I’m telling you what the courts have held. If, as it seems, you have a complaint with what they have held, don’t look at me–I have no interest in defending it.
So, I was told to go read Bowers, and I did. Please tell me if I’m understanding this right:
In Bowers, SCOTUS basically said:
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Yeah, there’s a right to privacy, and it covers a lot of things, but those things that are covered are really, really different than sodomy.
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If we allow a right to privacy for sodomy, then we’ll have to allow it for incest and pedophilia too.
Is this about right?
I will accept Dewey’s assertion that my argument for this being an issue of gender discrimination is not legally compelling. That’s fine - I’m not a lawyer, and my interest here is primarily being logically and morally correct, not legally correct. And, I maintain, my argument is logically and morally compelling. Frankly, the situation is precisely analogous to anti-miscegenation laws. Something is allowed for one combination of persons, not for another, where the difference is whether the race (or gender) is the same (or different). Anti-miscegenists screamed at the top of their lungs that the laws didn’t discriminate on the basis of race, as members of each race had the same rights, i.e., to marry someone of their own race, and strictly speaking they were right, just as a hypothetical supporter of the Texas sodomy statute would be if he said that gays and lesbians have the same “right” to engage in sodomy as straights, i.e., to sodomize a member of the opposite sex. These arguments are precisely logically analogous, and carry precisely the same amount of logical and moral weight. That isn’t to say that there isn’t legal wiggle room for distinguishing between the situations, given the precise wordings of things, and there are moderately compelling reasons to prefer the courts behave rather conservatively in interpreting the law. But that doesn’t change the logic of the situation.
More generally, this whole situation is clearly one appropriately described as the “tyranny of the majority”. It is quite clear to me that the general populace would never support a non-gay-specific sodomy law if it were ever enforced. I don’t have any cites, but I don’t think I’m going out on a limb by suggesting that sodomy laws would be repealed extremely quickly if they were used with any regularity, either in direct prosecution or as legal leverage. (“I’m sorry Mrs. Doe, but the record shows that you began an affair with Mr. Roe following the trial seperation with your soon-to-be former husband, and it’s reasonable to believe that said affair included oral sex, which is a felony (or misdemeanor, depending), and so I’m going to grant custody of Johnny to Mr. Doe.” - I am led to understand that reasoning like this is used with some frequency against gays and lesbians.) The only sodomy laws which are tolerated are those that are either written so as to be only applicable to gays, or that are only enforced against gays. Since the general populace would never tolerate this limitation on their own liberty, it is discriminatory to impose this limitation on the liberty of a minority, and, I submit, this is precisely the sort of situation which the Bill of Rights is intended to prevent.
This is not intended to be a legally compelling case, and I freely grant that there is some reason to prefer that the courts err on the side of the letter of the law rather than the spirit, since the former is generally clearer than the latter, and opinions on the latter might vary widely. However, it saddens me that in the United States, which is supposed to be a bastion of freedom and liberty, well-intentioned people still argue with a straight face that the state is permitted to regulate physical expressions of love (or wild animalistic sex, for that matter) between consenting adults in the privacy of their homes.
I haven’t read Bowers for a while, and I’m not going to reread it to check, since it makes me want to vomit. But I think you missed:
3. Sodomy has been illegal a lot in the past.
Gorsnak: I agree that the law in question is immoral and should be changed, just as I believe it was immoral to deny voting rights to women. But there is a right way to change a law you feel is immoral but which nevertheless does not violate the constitution: the ordinary legislative process (or amendment process, as the case may be).
I would support repeal of the Texas statute, just as I would have supported the passage of the 19th amendment. But agreement in moral principle does not justify reading language into the Constitution which simply is not there.
You suggest that the majority would never change the law because it only affects a minority, and that indifference must necesssarily rule the day. But clearly that isn’t the case; moral argument has indeed effected change to give the previously disenfranchised power. The 19th amendment is a perfect example – men essentially voluntarily diluted their own votes by giving women the right to the ballot box. And certainly none of the landmark civil rights legislation of the 1960s should have passed under your view – yet oddly enough it did.
The law can be repealed. Maybe not tomorrow, maybe not this year, maybe not anytime soon, but with enough time, enough work, enough of an effort to change the tide of public opinion, it can be changed. The suffragettes had to work for many years to secure their rights, but eventually they did. Expedience ought not be a substitute for principle.
In that particular case (womans suffrage), it would not be reading language that was “not there”, it would be reading language that is wholly contradictary to the constitution. And the reason I say that is because voting rights were only guarranteed constitutionally to males 21 and over.
Does anyone know if there is any current initiative either in the Texas legislature or in the populace to overturn the sodomy law. Is anyone trying at all?
What would happen if this is struck down soley on Equal Protection Grounds, and then Texas decides, rather than to tolerate homosexuals, it will enact a broad ban on straight and gay sodomy… but then it only chooses to enforce the ban on gays. What then?
WTF?? I most certainly do not suggest that the majority will never change the law because it only affects a minority. You completely misunderstand, and frankly, you reading that position into what I said violates the meaning of my text far, far more than reading a right to privacy into the Bill of Rights violates the meaning of its text. Many times majorities recognize the injustice of persecuting minorities, and take action to end that injustice, yes. For this they should be applauded. No one has ever taken the ludicrous straw man position you ascribe to me.
However, there are some times and places where the majority has no problems with allowing injustice to continue. In the case in question, for example, I see no groundswell of public support in Texas for repealing their obviously discriminatory law. Just because there are cases where unjust laws are repealed democratically doesn’t mean that there aren’t also cases where justice has to be rammed down the throats of bigots. Were anti-miscegenation laws repealed? Were they likely to have been repealed anytime soon when Loving struck them down? Give me a break.
So, tell me, do you think my general analysis is truly wrong? Is this not a case where the majority is engaging in tyranny? And is the Bill of Rights not intended to protect minorities from just that? Never mind that the details of the wording make such an application questionable in this case; that may be something the supreme court justices need to concern themselves with, and rightfully so, but it is not germaine to my question.
The fact that majorities sometimes refrain from tyranny is no reason to think that minorities shouldn’t be protected when the majority does engage in tyranny.