[Sergeant Bob]

Not trying to start a firestorm, I think this is important and hope it can be discussed calmly and rationally.
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Seen as creation of right to 'gay' sex, Scalia: Justices entered 'culture war'


In a landmark decision regarded by many as establishment of a constitutional right to "gay" sex, the U.S. Supreme Court rejected Texas' ban on same-sex sodomy.

Citing the 14th Amendment's Due Process Clause, the high court said in its 6-3 ruling that states cannot punish homosexual couples for engaging in sex acts that are legal for heterosexuals.


Tyron Garner and John Lawrence were arrested for violating Texas sodomy law

Critics of the decision differ on the legitimacy of the Texas sodomy law, but they agree the court has usurped the role of lawmakers, establishing a far-reaching precedent that threatens any law based on moral choices, including incest and polygamy.

"There is no constitutional right to engage in homosexual sodomy," said Kelly Shackelford, chief counsel of the Liberty Legal Institute, which filed an amicus brief on behalf of nearly 70 Texas legislators. "Read the Constitution as many times as you'd like. It's not there."

The ruling reverses a 1986 Supreme Court decision, Bowers v. Hardwick, which said individuals have no federal constitutional right to engage in homosexual acts. Until the 1960s, every state prohibited sodomy, but Texas was one of just 13 states in which a law exists and one of just four that banned same-sex sodomy only. The rarely enforced laws carry penalties ranging from fines to 10 years in prison.

The rest of the story at WND (http://www.wnd.com/news/article.asp?ARTICLE_ID=33277)

In a landmark decision regarded by many as establishment of a constitutional right to "gay" sex, the U.S. Supreme Court rejected Texas' ban on same-sex sodomy.
I don't see it as a Constitutional right to gay sex, but a Constitutional right not to have the government looking in your bedroom, a right to privacy.

"There is no constitutional right to engage in homosexual sodomy," said Kelly Shackelford, chief counsel of the Liberty Legal Institute, which filed an amicus brief on behalf of nearly 70 Texas legislators. "Read the Constitution as many times as you'd like. It's not there."
There is no Constitiutional right to eat Twinkies either then, cause it's not specifically listed:rolleyes:

Until the 1960s, every state prohibited sodomy, but Texas was one of just 13 states in which a law exists and one of just four that banned same-sex sodomy only.
There are still nine states which prohibit anyone (including a man and wife ) from engaging in "sodomy". They are: Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia.
So if your neighbor takes a disliking to you and calls the police to report a disturbance in your house, the cops barge in and discover you with your wife, then decide they just (as happened in the case cited)have to charge you with something! You could end up with fines and jail time.
The rarely enforced laws carry penalties ranging from fines to 10 years in prison.
Big Brother has no business in the bedrooms of consenting adults.

[Graystar]

It's the scariest thing when judges say "there is no constitutional right...." because such an attitude completely ignores the 9th amendment.

There's also a principle of American life that laws should only be passed to protect rights, and only when there is a clear case of rights needing protection. We should *never* legislate just because it sounds like a good idea.

[rock jock]

Its equally scary when the feds start getting involved in things clearly outside their authority by using the doctrine of the "living Constitution". Maybe they need to read over the 10th Amendment again. At the same time, its funny how some folks relish federal involvement on an issue like this and then complain later when they do the same thing with the War on Drugs.

[Jeeper]

I agree with the ruling to an extent because the laws against gay sodomy are based upon religion. I am aginst any law that is completely based upon religion. Some can argue morals but the religious factions are the ones at play. The right to privacy in this way has never really been given to this extent. Before this ruling it was legal for the state to legislate against oral sex (Actually considered sodomy under the texas law). This applied to both hetero and homosexual. IT seems rather ridiculous why the state should be able to tell a married couple that they cant have oral sex. Once you say that the married couple can do it then every one else is allowed equal protection. I have been following this case because it is rather interesting. This type of decidion was very forseeable.

[Chris Rhines]

No indeed, there is no Constitutional right to gay sex, straight sex, plain sex, kinky sex, or any other kind of sex. There is, however, a Constitutional (and beyond) right to determine the use of one's own body. Any law that attempts to criminalize such behaivor is contrary to both the Constitution and to the idea of liberty in general, and should be considered null and void on its face.

Good decision (for once) by the nine black-dress-wearers.

- Chris

[rock jock]

There is, however, a Constitutional (and beyond) right to determine the use of one's own body.
Nope, not found in the BoR. Your "contrary to both the Constitution and to the idea of liberty in general" is the same ruse the antis use to invalidate the 2A, yanno, the "living Constitution" and all that. One could easily make the statement that owning assault weapons is clearly against the idea of liberty, that drugs are a very real danger to our liberty and therefore both must be banned by the fed govt. Please don't ever cite the Constitution in support of your arguments again if you can't manage to be consistent.

[OF]

Are all your rights found in the BoR, rock? Not quite.

- Gabe

[Justin]

Rock Jock, for a guy with as many opinions as you've got, I sometimes wonder if you've ever even read the Bill of Rights.

Might want to check out Amendment number 9 there.

[rock jock]

Never said that. All I'm saying is that we either accept the Constitution as it is written, or open it up to interpretation. The sword cuts both ways. When you leave the interpretation of your extra-Constitutional rights in the hands of the Supreme Court, you are taking a mighty big risk. IMO, better to follow the 10th Amendment leave these decisions to the states.

[rock jock]

Justin,

Please cite in the writings of the FF where certain types of sexual behavior is deemed a "right" retained by the people? Also, you might want to read the 10th.

[dance varmint]

How about the constitutionality of banning consentual ritual sacrifice in the privacy of one's home?

[Graystar]

Never said that. All I'm saying is that we either accept the Constitution as it is written, or open it up to interpretation. So when you say "as written", you mean *your* interpretation...right?

[Justin]

RockJock, you still don't get it.
I don't have to cite chapter and verse of the FF's to justify one's right to engage in a particular behavior* any more than I have to cite the writings of the FF's for justification to eat a Snickers bar.

I have indeed read the 10th amendment, and I fail to see how that gives the states the power to delegate who can engage in what behavior in their own bedroom.



*So long as it doesn't violate the NAP.

[buzz_knox]

I have indeed read the 10th amendment, and I fail to see how that gives the states the power to delegate who can engage in what behavior in their own bedroom.

Try the police power, which is reserved for the states. The federal gov't can only regulate criminal activity on its own property or through a tortured version of the Commerce Clause. However, the states retained the power to regulate criminal activity under the 10th Amendment.

Also, recall that not every behavior is permissible because it occurs in your own bedroom: child molestation, forcible rape, and child pornography are just a few of the activities which take place in bedrooms across the country and are properly regulated. Whether consentual homosexual activity should be regulated or not was implicitly intended to be left to the state populations acting by and through their legislature to determine.

[Cosmoline]

Those who think the BOR should be read only as written need to look at it again. Look at the first sentence in the first amendment. "CONGRESS shall make no law..." Nothing about the States. So if we read it as written, you could be put in prison by Virginia for bad-mouthing the Gov.

[Jeeper]

Buzz,

You cant compare homosexual behavior to non-consentual behavior(rape, molestation etc). The state has as much power as doesnt infringe upon rights guaranteed by the fed. Under your thesis states could ban interracial marriages or at least interracial sex.

[buzz_knox]

You forgot the 14th Amendment, though, which applies the Bill of Rights to the states.

[buzz_knox]

Jeeper, agreed. But the point was that arguing whatever happens in one's bedroom is one's own business (the implicit statement to which I responded) is . . . less than accurate to be charitable.

[Justin]

Buzzknox- You did see that little asterisk next to the word 'behavior' in my post, yes?
It made reference to an endnote pointing out that one does not have the right to engage in behavior that violates the NAP or Non-Aggression Principle.

Since the behaviors you listed are all a violation of the NAP, it is therefore impossible to have a right to engage in such behavior.

I also think that the 10th amendment argument fails because if the states can regulate what sort of sexual behavior two consenting adults can engage in, then they can certainly regulate what sort of guns you and I choose to own.

[KC]

Go get (and READ) a copy of "Ain't Nobody's Business If You Do, The Absurdity of Consensual Crimes in a Free Society" by Peter McWilliams. The local Mega bookstores have a copy or two in stock where I am, and Amazon has it.

KC

[Justin]

You forgot the 14th Amendment, though, which applies the Bill of Rights to the states.

You know, I think it'd be fantastically entertaining to be a fly on the wall of the congressional committee charged with drawing up a constitutional amendment delineating what sort of sexual activity is cool by Uncle Sugar and what is verboten.

[stevelyn]

The Constitutional issues has more to do with the Constitution restricting the powers of government and the fact the legislature(s) that enacted the stricken laws, over stepped their bounds and had no business enacting them in the first place. Government needs to stay out of peoples' bedrooms and reproductive systems.

[Cosmoline]

Go read the 14th, though. There's no clear indication that it does this. My point is simply that every amendment must be interpreted and re-interpreted in order to make the whole thing work.

The Texas sodomy decision may well have impact on us, BTW. There are a growing number of scholars who see protection of the RKBA as not just a matter of the Second Amendment, but as an aspect of the Right to Privacy. Just as cops can't snoop under our sheets, they can't snoop in our gun safes, either. If anything is the heart of the American home--it's the gun rack.

I know the Right to Privacy has some very questionable background, but frankly I don't care. Anything that limits the power of government is good.

[BigG]

If anything is the heart of the American home--it's the gun rack.
Hear, hear! :D

[themic]

How about the constitutionality of banning consentual ritual sacrifice in the privacy of one's home?

don't think it's a constitutional violation, but it is an unnecessary violation of liberty. if people want to kill themselves, or each other in a consentual way, or their grandma who just wants the pain to end, then by all means they should be able to. sure, case law would likely lead to some careful steps before doing such, something to the effect of consent forms and witnesses and standard practices, but nevertheless the right should be there.

in an ideal world, crimes require victims, and a consentual partner in any activity cannot be a victim.

[Chris Rhines]

The Constitution - I don't often refer to it, simply because I do not believe it to have any authority save for over those who signed it (I think that they're all dead now.) My rights don't come from any piece of parchment.

Irregardless of what the legislature says, I have the right to practice consentual sex with whomever I desire. Any law that deems to infringe upon this right should be struck down. As such, the SC did the right thing.

- Chris

[JDSlack]

My two cents (adjusted for inflation):

I think that this case was decided on the very narrow principle that you cannot have a law that applies only to one segment of society. If I read Justice O'Conner's brief correctly that was what she based her decision upon. The Texas law made it illeagle for same sex couples to engage in sodomy, but it not prohibit the same behavior for male/female couples. That violates equal protection. In an earlier case, from Georgia, she (and the Court) upheld an anti-sodomy law because it did not specify the gender of the participants. I beleive there was also an issue about how the police got into the residence (but I'm not sure on that point).

Now, back to the real world, the gay rights folks are ballyhooing this as some sort of vindication of their lifestyle, which it was not. The other side of the chasm are claiming this will destroy the Nation and bring down the wrath of the almighty, which it won't.

And as a final point, I was a cop for 31 years, in a large metropolitian area, and I never heard anyone make an arrest for a violation of Florida's version of this law, except when the activity was occurring in public. Does anyone else in here know of any cases where two males, or two females, or one of each, were arrested for engaging in sodomistic behavior, not in public?

[BigG]

Sounds like a lotta ado about nothing, JD.

[Sergeant Bob]

Does anyone else in here know of any cases where two males, or two females, or one of each, were arrested for engaging in sodomistic behavior, not in public?
I remember one (agreed, it doesn't happen often) probably about 17 or so years ago where the police were engaged in the WOD and found none. The "perps" were charged with sodomy, I believe, because they couldn't bust them for anything else. I think it was Kansas, will try to find it.

[Sean Smith]

The people whining about how this case is a "State's Rights" issue are wrong. The separate states have no more "right" to persecute U.S. citizens on a trumped-up, tyrannical pretext than the federal government does. Instruments of government power, whatever form they take, have no rights, only limitations, and I'm always happy to see ANY instrument of state power at any level have its powers curtailed. And for once, the notion that this is a pretext for extending federal power is a joke, since the Supreme Court invalidated the idea of anybody, including the federal government, making a similar law to the one in Texas they shot down.

"State's Rights" constatly being used as a pretext for the most reprehensible forms of tyranny by the states has only served to discredit the idea in the public mind. The 10th Ammendment doesn't give the states the "right" to negate Ammendments 1-9. It was meant as a break on federal power, not a blank check for the states to be tyrannical in its place. :rolleyes:

[rock jock]

Since the behaviors you listed are all a violation of the NAP, it is therefore impossible to have a right to engage in such behavior.
Is this NAP thing a matter of opinion or Constitutional law?

The separate states have no more "right" to persecute U.S. citizens on a trumped-up, tyrannical pretext than the federal government does.
First, tyrannical often refers to "I don't like that law, so it must be oppressive". As Buzz pointed out, I am sure that NAMBLA finds state laws prohibiting statutory rape and child molestation oppressive and tyrannical. Perhaps a better example is the civil war. There are a lot of people who think the fed. govt. stuck their nose in the wrong place when they decided to start dictating to the states what was and was not permissable.

Instruments of government power, whatever form they take, have no rights
Huh? So where does a state derive its right to pass any laws?

The 10th Ammendment doesn't give the states the "right" to negate Ammendments 1-9.
And where is homosexuality covered by Amendments 1-9?

[Sergeant Bob]

And where is homosexuality covered by Amendments 1-9?
And where, exactly is heterosexuality covered in BOR 1-9?

I believe the case in question is covered under the 4th, 9th and 14th amendmants.

[DJJ]

Does anyone else in here know of any cases where two males, or two females, or one of each, were arrested for engaging in sodomistic behavior, not in public?

I remember one (agreed, it doesn't happen often) probably about 17 or so years ago where the police were engaged in the WOD and found none. The "perps" were charged with sodomy, I believe, because they couldn't bust them for anything else. I think it was Kansas, will try to find it.

You may be thinking of the case of Michael Hardwick. (http://college.hmco.com/polisci/amgov/documents/bowers.htm) Skimming that decision, it looks like the SC upheld the constitutionality of sodomy laws (even though Hardwick wasn't charged). Their logic was the same: the Constitution does not "confer" (Justice White's word) a right to homosexual sodomy.

Morality of the issue aside, the fact that White used that kind of logic (that the intent of the Constitution is to "confer" rights on the people) proves he (or any justice who uses the same logic) either 1) Doesn't understand the Constitution, or 2) Is an arrogant elitist.

[rock jock]

And where, exactly is heterosexuality covered in BOR 1-9?
Its not.

I believe the case in question is covered under the 4th, 9th and 14th amendmants.
Well, if you stretch your interpretation of the Constitution that far, that's fine. But as I said before, when you allow SCOTUS to open the umbrella of fed. authority over an issue not covered by the Constitution, you enter dangerous territory.

[Sergeant Bob]

You may be thinking of the case of Michael Hardwick.
It may be, not sure. That is the case referred to as being overturned by Lawrence v. Texas .

That is an interesting read on Hardwick v Bowers. Did you note the dissenting judges?
Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. Weren't these Justices (other than Stevens) appointed by Reagan, Nixon and Ford? Their dissenting opinions are basically the same as the majority in Lawrence v Texas.

[Jeeper]

My two cents (adjusted for inflation):

I think that this case was decided on the very narrow principle that you cannot have a law that applies only to one segment of society. If I read Justice O'Conner's brief correctly that was what she based her decision upon.

JD

Although that is what O'connor based her decision on, the majority decision(which is the only binding one) straight up said it was due process and NOT equal protection.

I believe that this was a win for them. They did this because they cant just make a law that applies to homo and hetero and only enforce it against one group. THe main holding of this was that private consentual sexual behavior is none of the gov't damn business.

[Gordon Fink]

Article IV in amendment to the U.S. Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.…

Article IX in amendment to the U.S. Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

QED

~G. Fink

[rock jock]

THe main holding of this was that private consentual sexual behavior is none of the gov't damn business.
If that was their basis for the ruling, then it is again a matter of opinion, not a matter of law. As it is, this govt. and every other on God's green Earth has made various behaviors subject to restriction. The FF clearly left decisions of this kind at the door of the states. Now matter how you twist the Constitution to suit your opinion, this case still comes out as an expansion of federal authority in an area not covered by the Constitution.

[Justin]

Is this NAP thing a matter of opinion or Constitutional law? Smarmy jibes aside, yes, you can see the basis for the Non-agression principle in the writings of the forefathers. Basically, what it boils down to is this: The forefathers wanted to be left alone to pursue their lives as they see fit. They wanted a country founded on the principles of individual liberty. They deliberately left the bill of rights vague because they knew that there was no way they could posssibly spell out every single possible human right. (As proof of this, look at the 2nd Amendment. It lists 'arms' instead of muskets or flintlocks. By deliberately leaving it vague, they knew that future incarnations of small arms would be protected by the law.)
To say that the 9th amendment doesn't apply because then the anti's could use it is patently absurd, at least to any logical person. Because you cannot have subtractive rights. It's a cute little attempt at doublethink, if nothing else.

First, tyrannical often refers to "I don't like that law, so it must be oppressive". As Buzz pointed out, I am sure that NAMBLA finds state laws prohibiting statutory rape and child molestation oppressive and tyrannical. Doesn't apply, once again, because you cannot have a right that through its exercise directly harms another individual. Besides, this law deals with actions taking place between consenting adults. Therefore arguments that this somehow is related to child abuse don't apply. They have a name for that:
It's called a Straw Man argument.

[rock jock]

The forefathers wanted to be left alone to pursue their lives as they see fit.
Are you suggesting that the FF were not in favor of laws regulating certain behavior?

They deliberately left the bill of rights vague because they knew that there was no way they could posssibly spell out every single possible human right.
So why did they not just have two Amendments - the 9th and 10th, i.e., not mention any rights?

[Jeeper]

Now matter how you twist the Constitution to suit your opinion, this case still comes out as an expansion of federal authority in an area not covered by the Constitution.

I was just clarifying what the holding actually said since the previous post was a little off target.

There are a lot of behaviors not covered by the constitution including marriage and sex in general. I guess you just differ in opinion from SCOTUS. I am anxious to see what kind of ruling stem from this one. Scalia's dissent gave some examples that might now be ok including adultury and such. It will be interesting. THe consitution was meant to be interpreted since every situation could not have been conceved in 1789. You might agree more with Thomas whose dissent said that the whole right to privacy is a crock.

[Marko Kloos]

And where is homosexuality covered by Amendments 1-9?

Nowhere, because the Bill of Rights does not put limitations on private citizens. It puts limitations on the government. The Constitution in general and BoR in particular are a list of "thou shalt nots" and "thou mays" for the government. If a particular action is not listed in the Constitution as permitted, the government may not engage in it.

Where did you learn that everything not explicitly listed in the Constitution is prohibited to citizens, or restrictable by law? The Bill of Rights does not expressly permit heterosexual acts, either. If you think that a majority can set such standards for the minority, does that mean the community of San Francisco can outlaw heterosexual acts and still be within constitutional bounds?

The fact that we even have to debate whether the government has the right to regulate consensual acts between adults in private homes is ludicrous. It just confirms my opinion that the "love of freedom" claimed by so many merely extends to the rights they find agreeable.

(Before anyone drags out the NAMBLA and child rape arguments again, note that I said "consensual acts between adults".)

If it involves two consenting adults of any sex, and it goes on behind a private bedroom door, it is neither your business nor that of the government. Don't think for one second that you have a moral or legal right to have guys with badges knock down your neighbors' door just because you dislike their sexual preferences.

Jiminy Cricket...even Edgar Freakin' Hoover once opined that the Feds "...are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce."

Our tolerance for Statist interference in private conduct must have greatly increased in the last 50 years, if Reichsfuehrer Hoover sounds like a commie pinko Leftist compared to the many distressed Conservatives who now accuse the Supremes of "caving in to the gay agenda."

(If my wife and I want to be left alone in our bedroom without some goose-stepping moral guardian kicking down our door, are we caving in to the "hetero agenda"?)

[bountyhunter]

I think the Federal Government and States as well should find better things to do with their Gestapo than having them police the bedrooms of America. Last time I checked, nobody was ever drafted into the Rump Rangers... it's an all-volunteer army. And I really don't give a crap what people do in their bedrooms, and I sure don't want my tax money spent by the states and feds to find out what they do in bed.

[Tamara]

This thread is devolving into a splendid example of why sexuality, homo- or hetero-, was on the verboten list back at TFL. :(