Not so. The constitution is silent on eligibility to vote outside of the passage of the 15th (race), 19th (sex), 24th (poll taxes) and 26th (age 18) amendments. While restricting the franchise to male landowners of a certain age may have been the practice at the time of ratification, that practice most certainly was not enshrined in the constitution. Nice try, Sparky.
Gorsnak: your post contradicts itself, for the examples I cited of a majority being persuaded to protect a minority position did not happen overnight. The fight for women’s suffrage was a long one that ran into plenty of opposition and indifference. I see no reason why the current situation should be seen any differently. The mere fact that there is opposition to changing the law today does not mean that such opposition cannot be overcome tomorrow through the force of moral persuasion. Yes, that’s a longer, harder road to follow, but in the end it is all the more worthwhile.
The respondent’s brief linked to above includes references to recent attempts to change the law.
Texas and many other states have IGNORANT laws on the books that should simply be stricken…IANAL… but IIRC laws can be removed without reversal of said law.
The State did reverse the conviction of these two men and basically negated the law when doing so. Remember the original charges were brought up in J/P court. The “neighbor” is the one who needs an ass whooping. This person obviously lied to the police in order to get these guys busted. A few strings pulled by “Bubba” and the good ol’ boys is how this happened.
As far as the Fed. Supreme Court goes…it’s not really in their best interest to start granting rights to specific groups. The State has the responsibility to look after it’s citizens and will, I think, when made aware of these types of laws which are not usually enforced anyway. (doesn’t justify their existence, I know) We needn’t tie up the courts with obvious discriminatory laws…just get rid of them.
Are you saying that the men in Lawrence v. Texas have had their convictions overturned by a court in Texas?
The appeal of this case was whether the law was unconstitutional. As best I can tell, the Court of Appeals determined it was constitutional.
You can read the opinion to see if it conforms to your view of the case.
What, nobody’s going to argue in favor of Blackmun’s dissent in Hardwick?
“This case is no more about a ‘fundamental right to engage in homosexual sodomy’, as the Court purports to declare, ante, at 2844, than Stanley v. Georgia, 394 U.S. 577, (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be left alone.’ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).” Bowers v. Hardwick, 478 U.S. 186, 199 (1986).
This is entirely true, but, as with so many types of housecleaning, it often gets deferred until it gets forgotten. Usually these laws are not enforced, or prosecuted, but that isn’t a real remedy.**
The state did not reverse the conviction(which was indeed handed down by a Justice of the Peace), it certainly did not overturn the law. A three-person panel of the 1st Texas Court of Appeals(based in Houston)(pretty sure I’ve got the court right, been a bit since I did the research for a previous thread) ruled this law unconstitutional. The panel’s decision was challenged(no idea why or by whom) and the full court reversed the panel’s findings. Now the local court judge found them Guilty as a result of police testimony and their plea of “No Contest”. There wasn’t a trial originally(there isn’t a trial for most misdemeanors, nothing out of the ordinary here). After the circuit Court of Appeals made its ruling the next rung up the ladder is the Texas Criminal Court of Appeals(half of the Texas Supreme Court. The Texas SC consists of the Court of Criminal Appeals and the Supreme Court and they split criminal/civil matters). The Court of Criminal Appeals has the authority to strike laws down on constitutional grounds, but they refused to hear the case so the ruling of the full 1st Circuit Court of Appeals stands until the SCotUS makes its ruling.
I agree that the guy who called in a false alarm should be the one fined/arrested.
Enjoy,
Steven
Yes.
Motion for en banc reconsideration, filed by the State. That just means they asked the full court of appeals to consider the question, due either to the significance of the legal issues or just the assertion that the 3-judge panel got it wrong. A majority of the whole court (9 or so judges in the First Court–size varies among the different courts of appeals) voted to grant en banc review, and the rest is history.
Actually, it’s not a “circuit” court; it’s just “The First Court of Appeals” in Houston.
The Texas Supreme Court and the Texas Court of Criminal Appeals are wholly separate courts. As you note, the Supreme Court’s jurisdiction is predominantly civil cases, although it also has appellate jurisdiction over criminal cases filed in juvenile court. (In fact, the TSC issued an opinion last year involving an interesting 5th Amendment question where teh criminal conviction was in a juvenile court.) The TSC is nominally a higher court than the Court of Criminal Appeals, though there is no review from one to another and each court’s jurisdiction is pretty much exclusive, eliminating nearly all conceivable conflicts between them.
As does the Court of Appeals, and the trial court, and any other court in the land. In fact, as all judges are sworn to uphold and must follow the Constitution of the United States, they are under a duty to declare the law to be unconstitutional if they find it to be so.
Yep. In most criminal cases (with the notable exception of death penalty cases, the Court of Criminal Appeals’ jurisdiction is discretionary, meaning they choose the cases they want to hear. In this case, they probably figured the issues were already settled by Bowers and other cases, and they pragmatically didn’t want to take the heat of reviewing it. Unlike the US Supreme Court, the CCA judges are all elected. All Republicans too. Nasty consequences next primary season if they vote other than to imprison the queer folk.
Oh, and I wish to stress that while the Texas Suprme Court is a good, thoughful court for which I have a ton of respect despite its conservatism, the Texas Court of Criminal Appeals is an absolute disgrace.
:rolleyes: Apparently lawyers operate under a different definition of ‘self-contradiction’ than do philosophers. My post certainly did not contradict itself, nor do you even attempt to point out any way in which it does. You merely point out that in some (perhaps most) cases where the majority does voluntarily end a specific tyranny over a specific minority, the process takes time and is not without opposition. This is in no way in contradiction with the assertion that sometimes majorities do not voluntarily end their tyranny (and in any event would be you contradicting me, and not me contradicting myself), nor does it even attempt to answer the point my previous post made - that a minority subject to having their liberty restricted by the majority in a way that the majority would never tolerate being restricted themselves deserves protection regardless of what the will of the majority might be, or whether that will is malleable or not.
If I understand your argument in this extremely opaque post, you are attempting to say that in all cases where a minority is suffering under the tyranny of the majority, the majority will relent, eventually, though it might take a while. This is, of course, an empirical claim about things sociological, and not one which can be falsified, since it predicts no time line. Any cases where the majority is still a tyrant are just cases where the process is still under way.
To this I have two responses. First, I think it is overly optimistic, and you have provided no evidence for its truth. Perhaps I shouldn’t complain on that point, since as noted it’s not something that’s open to scientific investigation, given its unfalsifiability; however, if you want it to carry any weight in this forum, I suggest you attempt to give it some sort of support. Why should we think that a tyrannical majority can always be persuaded to end their tyranny?
Second, it’s largely irrelevant to the point I made. The Constitution has been set up, at least in part, to restrict the majority from tyrannizing minorities. Minorities being persecuted by majorities deserve protection now, and not a couple decades from now when the majority can be persuaded to change its mind. Loving was a good decision, in spite of the fact that a vast majority opposed interracial marriage at the time, and that particular tyranny would have taken decades at the least to have removed. Why is that a bad thing? Can you point me to the part of the constitution where the right to marriage is enshrined?
Look, your overall theme is one which does have a certain amount of merit. In general, it is preferable to change laws democratically rather than judicially, and when laws are changed judicially, it is preferable that judges refrain from making expansive rulings based on vague constitutional language. That’s fine. I agree. I’m not overly keen on ceding too much power to the Supreme Court. However, that in itself is no reason to think Scalia had better arguments than Blackmun in Bowers v. Hardwick. Frankly, Scalia’s opinion in that case was atrocious, from a moral and logical point of view if not a legal point of view, and I think Bowers v. Hardwick will quite rightly go down in history with Plessy v. Ferguson and Dred Scott as horrible decisions which may have adhered to the letter of the law, but violated its spirit.
I should have explicitly stated that the Texas Court of Criminal Appeals and the Texas Supreme Court are completely seperate entities. The point I was making is that they are both effectively in the same “tier” with regards to the court system’s hierarchy. This means they don’t review each other’s cases and you can’t really appeal a Texas Court of Criminal Appeal’s decision to the Texas Supreme Court(well, technically you may be able to, but the odds of the appeal being heard are tiny). Both are considered “the supreme court” but they typically split jurisdiction criminal/civil as their names would suggest. In fact, althouth the TSC is nominally a higher court than the CCA, the hierarchy chart published by the Texas Court system has the two courts sharing the “Stage Highest Appellate Court” tier.
Enjoy,
Steven
Let me put this in perspective. Here in texas, consensual homosexual conduct and sending junk faxes are both Class C misdemeanors. Boggles the mind. One doesn’t harm anyone, and the other is stealing from innocent victims, worthy of being sent straight off to the death chamber at Huntsville. Yet they’re both in the same classification… what a world (or at least, what a state). Makes me embarrassed to be a texan.
Not so. The Constitution, in addition to setting forth the framework of the federal government, restricts the majority from “tyrannizing” (nice loaded phrase, BTW) minorities in certain specific areas. If a right ain’t in there, it ain’t protected, and the only appropriate remedy is the legislative or amendment process. And as history has shown, those remedies are not impossible to achieve.
BTW, “tyranny” in the sense you’re using it is in the eye of the beholder – any rule that doesn’t get 100% support could be called “tyranny” by the minority opposing it. I’d bet dollars to doughnuts there are some folks in Arkansas who consider the incest laws to be “tyranny” against their sexual preferences.
‘Tyranny’, in the sense I have been using it, is restrictions to the liberty of minorities which the majority would not accept being applied to them. I have used this precise language at least twice, and it clearly does not apply to your hypothetical incest case. Please find another red herring.
And, I maintain that the personal liberty so beloved by Americans includes private consensual sexual activity, and hence this is protected by the spirit, if not the letter, of the Constitution.
This is utter nonsense. Laws against incest are also restrictions on “private consensual sexual activity.” Indeed, it is very similar to the challenged law in that it does not criminalize sexual activity per se but rather the choice of particular sexual partners. So I ask: is incest protected by the spirit, if not the letter, of the Constitution?
somebody whose name I forgot to note: *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?*
I haven’t heard of the NC case, but I’ve heard this argument in favor of antisodomy statutes, and more recently than Griswold. Supporters of the Rhode Island antisodomy law (which was repealed by the state legislature in 1998) argued that the law was valuable because it allowed for a conviction in rape cases where the prosecution didn’t manage to prove that the sex was non-consensual: as long as oral or anal sex could be shown to have taken place, at least the defendant could get canned for something.
IANAL, but it kinda bothers me to think of any law being used selectively as a backup method to punish someone for a crime that you failed to prove they committed. Also, the RI antisodomy law in practice was mostly invoked against gay males, anyway.
Not so fast, Dewey. Section 2 of the 14th amendment says, in part:
But when the right to vote at any election… is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion…
Voting rights were specifically provided only to males who are at least 21.
No, incest is not protected. There is a legitimate, secular purpose for a ban on incest. The very nature of family relationships make incest problematical, which can justify a blanket ban on such activities. There is also the problem of inbreeding, which could present serious problems.
Can you apply such reasoning for banning homosexual sodomy, but not heterosexual sodomy? I can’t think of any reason other than religious proscription, or habitual dislike of homosexuals.
After all, “mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).
As was noted in a case involving The Amish’s right to withdraw their children from public school after 8th grade,
A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different." Wisconsin v. Yoder, 406 U.S. 205, 223 -224 (1972).
These above quotes were used in Blackmuns Dissent in Bowers v. Hardwick, they are as relevant then as they are now.
In Romer v. Evans, Scalia complained:
I hope Scalia puts his money where his mouth is and votes to overturn Bowers v. Hardwick, sticking with his claim that it’s been contradicted already! Of course, I doubt that’ll happen, but I can always hope.
Yes, utter nonsense. :rolleyes: First, you ignore the more salient point, to whit, that laws against incest would not qualify as ‘tyranny of the majority’ given my explication of that idea, in that they do not impose any restrictions on liberty that the majority is not willing to live with. Therefore, your assertion that incest laws could be seen as a case of tyranny of the majority in the sense I have been using it is utterly and completely false. “Tyranny of the majority” in the sense that I have been using it is not in the eye of the beholder, but rests on a simple, straightforward, and quite compelling principle. And you know that, and yet ignore the principle and bring in your red herring anyways, I imagine because you can’t think of any argument against the principle. Perhaps arguments which rely for their force on the jury being distracted from relevant points work in a courtroom, but they don’t contribute to honest debate seeking to reach a position based on reason.
As to incest qualifying as private consensual sexual activity, I submit that this is very much an open question, in that the power relations between family members make “consent” problematic to say the least, in much the same way that consent in doctor/therapist-patient cases is problematic. The state holds, not unreasonably, that it has a compelling reason to restrict liberty in the case of incest, both because of consent issues, and historically, because of medical issues when close relatives have children. There is no analogous state interest in the case of sodomy. The only “state interests” in the case of sodomy are a few religious views on sexual morality, and these cannot be argued to have any legitimacy whatsoever. There may be a case against incest laws, but it would perforce look very different from the case against sodomy laws, as the principles involved are very different. The similarities are entirely superficial, and anyone asserting otherwise is either ignorant or disingenuous. Again, get another red herring. This one doesn’t work.
“Though a three-judge panel of the state Court of Appeals reversed the men’s convictions under the Texas Equal Rights Amendment, the full appeals court reversed.”
This is a quote from the original charges…the convictions were overturned. As far as the constitution-ality of the case, that is pending. Point being, the state recognizes the law as being unjust and is prepared to rule accordingly. A simple petition to revoke the law should be all that is required to dismiss it.
I went to school with our state senator and according to him it is an obsolete law that is not enforced under “normal” circumstances and that if the people would write their local representatives in protest that it would be off the books w/ no contest.