From: Valence (valence10@hotmail.com)
Date: Thu Jul 03 2003 - 03:19:37 BST
Hi Platt and all,
Since Johnny and I are already involved in a similar thread I thought I'd
make some comments here as well.
PLATT
In effect, the Court has made the practice of sodomy a
> Constitutional right, superseding all state laws that would say otherwise.
RICK
Characterizing the conflict decided in Lawrence as being about a "right to
sodomy" is in my opinion a disingenuous strawman that trivializes the
important substance of the issue at stake and makes it all too easy to
dismiss. It was about the right of consenting adults to do what they want
with each other in the privacy of their own bedrooms. It's what the Court
refers to as the liberty interest in the freedom of intimate association.
As Justice Blackmun dissented in Bowers, "[this case] is about the right to
be let alone, the most comprehensive of rights and the right most valued by
civilized men." That's the right that was Constitutionally recognized.
PLATT
> Critics were quick to point out that nowhere in the Constitution can one
> point to right to sodomy just as one cannot find in that document a
> general right of privacy.
RICK
That is true, there is no explicit right to privacy in the Constitution.
However, there's nothing in the Constitution that explicitly gives the
states the right to regulate sexual conduct either. But let's look at what
it DOES say... The Constitution does explicitly say that the Bill of Rights
was not meant to be exhaustive (9th amendment) and therefore, the failure of
the Constitution to explicitly mention a right doesn't necessarily mean
anything. Moreover, the Constitution explicitly reserves all unenumerated
powers to the states OR the people (notice how the framers differentiated
between 'the states' and 'the people'). Seen in this light, the question in
Lawrence might be framed as whether or not the framers recognized a 'freedom
of intimate association' and if so, whether this freedom (and the power to
curtail it) was meant to belong to 'the states' or 'the people'.
PLATT
> Texas argued that preserving the majority's sense of morality was a
> legitimate state interest. But the Supreme Court disagreed, stating in
> effect that public morality is not a sufficient basis to sustain a law...
RICK
They said morality alone is not a sufficient interest to sustain a
"criminal" law. But I wonder Platt... Doesn't it bother you even a little
tiny bit that when called upon to defend the purpose of the sodomy laws the
state couldn't come up with even one single argument to support the law
other than merely saying "sodomy is immoral" and couldn't point to even one
tangible good the law accomplished other than the tautological 'good' of
'banning sodomy'?
PLATT
> raising the possibility that state laws against bestiality, incest,
> prostitution, and polygamy, enacted for no other reason than to promote
> the majority's moral views, could likewise be overthrown as
> unconstitutional.
RICK
Well, I think that most of the examples you named are distinguishable and
are not based on 'morality alone'. However, you are right in saying that
any criminal law that can't be shown to have even a mere rational
relationship to a legitimate state end other than enforcing the moral views
of a majority is now vulnerable to Constitutional attack.
PLATT
> Of course, the paradox is that the justices in striking down sodomy laws
> used their own morality.
RICK
What is it that you're describing as "their own morality"? None of the nine
Justices are homosexual and of the 6 member majority, two (Kennedy and
O'Connor) are considered part of the Court's conservative block (liberals
are a minority on the USSC... just ask Al Gore about that one).
PLATT
Instead of permitting the public to enforce its
> moral views, the Court has taken upon itself the role of final moral
> arbiter.
RICK
It didn't "take it upon itself", it's been assigned the task of being legal
arbiter of the Constitution by the document itself. You might say the
dissenters felt that they didn't have the power to tell states that they
*couldn't* make sodomy laws anymore than they had the power to tell states
that they *had* to make sodomy laws while the majority felt that the states
didn't have the power to make laws that *prevent* individuals from engaging
in sodomy anymore than it would have the power to make laws *forcing*
individuals to commit sodomy. Moreover, when you say they're not permitting
"the public" to enforce its moral views what you really mean is "the state".
Individuals are also "the public" and it was to them that the Court gave the
power on this occasion.
PLATT
> Was the Court's decision correct according to the MOQ? Here we see a
> biological value, sodomy, in conflict with a social value (social mores)
> with a bit of intellectual values (individual rights) thrown in.
> For myself, I don't see social restrictions against sodomy to be a threat
> to higher intellectual values. And I think the public through its
> democratically elected representatives should be able to establish laws
> that reflect the morals of the majority rather than have a six or seven
> individuals decide such matters, provided intellectual values are not
> obliterated by any state in the process.
RICK
Just for the record, only 13 states had sodomy laws (even Georgia had
repealed the law which sparked Bowers v Hardwick on its own even before the
Supreme Court labeled it unconstitutional). Moreover, none of those laws
were ever enforced with any frequency (in fact, most haven't been used in
decades and really only remain on the books because legislatures often don't
bother to repeal obsolete laws, they just leave it up to the Courts to sort
out...that's what the Courts are designed for). Furthermore, Gallup polls
show that Americans overwhelmingly (70%... even in Texas) don't think the
state should be able to regulate what consenting adults do with each other
in the privacy of their home. So rest assured that no majority saw their
moral views damaged by this opinion.
What was at stake was a religiously based law that had been imposed decades
ago by a powerful tyrannical minority to use as a legal bludgeon that would
keep homosexuals "in their place". That's why the sodomy laws weren't ever
really enforced,...they were only on the books to prevent homosexuals from
taking advantage of the legislative and judicial processes by criminalizing
the activity that united them as a class. Think of "Robert's Rules of
Order" (LILA p255) - "No minority has a right to block a majority from
conducting the legal business of the organization. No majority has right to
prevent a minority from peacefully attempting to become a majority." That's
what the sodomy laws were used for in the past 6 decades or so... to prevent
"evil homosexuals" from peacefully attempting to use the system to their own
advantage. And that's MoQ immoral.
take care
rick
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