From: Valence (valence10@hotmail.com)
Date: Wed Jul 02 2003 - 02:59:53 BST
Hey Johnny,
> huh? In public the police don't need a warrant, but they do to enter a
> private home. What does that have to do with legaliity of behavior in the
> home?
R
As I said, it's not really about the "legality" of behavior in the home.
It's about the legality of the methods of enforcement the government can
use.
J
To me, it says, if you want to do something illegal, you'd better do
> it in your private home, if you don't want to get caught.
R
And you'd be right. In your own home, your right against government
intrusion is at its max.
J
> There is no law that says Supreme Court decisions become the "law of the
> land"....
R
Maybe you should try reading the Constitution J. The Constitution of the
United States was ratified by the states as the supreme law of the land (see
the Supremacy clause). Article III vests the Judiciary power of the United
States (the power to interpret the laws) in one Supreme Court.
> >R
> >To oversimplify once again, whether or not a class of people (for legal
> >purposes) can be defined solely on the basis on a shared behavior has yet
> >to
> >be determined at the ultimate level.
J
> So how did a class of people defined solely on the basis of shared
behavior
> figure so prominantly in this decision? That was the stunner to me, that
> Kennedy actually created two distinct classes of people, with different
> rights and responsibilities, out of nothing, like Loving v Virginia in
> reverse.
R
The opinion of the court extended the right to privacy to protect
consensual, sexual acts between adults in the privacy of the home. This
decision was made under the body of law called "substantive due process".
Lawrence was NOT an equal protection case and its holding does not rest on a
"class" of people. Don't be fooled by the fact the particular case involved
homosexuals. The rights enumerated in the holding apply to all individuals,
gay or straight. They are privacy rights belonging to all individuals and
not just the rights of any given protected class. And while the majority
did briefly infer that the law violated equal protection as well, it
declined to decide the case on that basis precisely because it didn't want
states to think they could retain the sodomy laws by extending them to cover
everyone regardless of sexual-orientation. That is, they actually took care
NOT to create two classes of people.
> >R
> >That's pretty much what they do J. The Supreme Court interprets our laws
> >in
> >accordance with the "ahistorical" principles found in the Constitution.
J
> Well, Kennedy's and O'Connor's opinions were all about "at this time", we
> will deal with gay marriage and other things when their time comes.
R
That's just a statement of the court's traditional posture of only dealing
with issues that are actually presented to it (the Constitution limits the
court's jurisdiction to actual cases or controversies).
J
It was
> a very post-modern decision. And they pretty much admitted that they had
to
> throw out everything but the last 50 years of history. It was funny to
> hear them say that Bowers was wrong when it was decided. What a joke.
R
Clearly you didn't read a word of the opinion (or if you did, your reading
skills leave much to be desired). Far from "admitting that they had to
throw out everything but the last 50 years of history" the court went to
great pains to explain how it was Bowers that in fact had the history badly
wrong. Bowers had assumed that legal discrimination against homosexuals was
a well established tradition in our country and in the thousands of years of
judeo-christian culture that preceded it. However, after writing the
opinion, legal historians around the world were quick to point out the
history presented in Bowers was dead wrong. On the contrary, though laws
against "sodomy" existed for thousands of years and at the time of the
framers, the laws were actually entirely neutral in their treatment of
individuals. They banned sodomy for everyone (not just same sex couples)
and were typically limited to cases of non-consent or cases involving
children. In fact, the court pointed out that up until about 50 years ago,
there were virtually no American laws (or English common laws) that
discriminated in their application on the basis of sexuality. Moreover,
before about 100 years ago, the concept of "the homosexual" as a distinct
category of identity is virtually unheard of in law, medicine, psychology or
anywhere. It was Bowers that had upset the traditional historical balance
and the Court took this opportunity to correct its previous mistake.
take care
rick
The society which scorns excellence in plumbing because plumbing is a humble
activity, and tolerates shoddiness in philosophy because philosophy is an
exalted activity, will have neither good plumbing nor good philosophy.
Neither its pipes nor its theories will hold water. - John W. Gardner
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