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America's Debate > Archive > Assorted Issues Archive > [A] Big Trials and Legal Cases
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jmunro
I understand that the private acts that do not affect the liberties of individuals not involved should be lawful, but my problem lies in the ideas that

1. Sodomy can be harmful to the health
2. Many "paternal" laws exist in reference to the independent well being of citizens

The fact that it is consensual and of no harm to other individuals leads me to agree with the decision of the court, but there is a problem with the overwhelming number of other paternal laws. ermm.gif
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Paladin Elspeth
It's interesting. I'm noticing the cycles that we go through in America's Debate. For a while we seemed to be dealing with WMDs and with threads on Did our leaders lie to us and what should we do with these guys. Now many of them are dealing with homosexuality, types of marriage, and types of sex--all in the same vein.

Sex between consenting adults in the privacy of the home is none of the government's business, regardless of the value judgements of members of the community on the type of sex they are having.

The fact that certain diseases can be contracted by having non-traditional sex should have no bearing on this until straight, heterosexual sex no longer spreads disease, either!

I would say promiscuity is the problem, not the type of sex. Regardless, consensual adult sex is not within the government's jurisdiction.
Passion51
The problem with this decision has nothing to do with homosexuality. It has to do with state's rights. Rights to pass laws that do not violate the Constitution. A right to privacy is nowhere contained in the Constitution.

The Supreme Court decision is wrong. More than anything, it only serves to encourage legislation by the judicial branch, and even more egregious violation of state's rights.
Ultimatejoe
QUOTE(Passion51 @ Jun 29 2003, 06:51 AM)
The problem with this decision has nothing to do with homosexuality. It has to do with state's rights. Rights to pass laws that do not violate the Constitution. A right to privacy is nowhere contained in the Constitution.

The Supreme Court decision is wrong. More than anything, it only serves to encourage legislation by the judicial branch, and even more egregious violation of state's rights.

I'm no expert, but wouldn't the 9th amendment figure in here?
OlympiaManet
I can't think of one person I know in Texas who actually thought that law was "good." With the time limitations of our legislature and the political ramifications of trying to effect change it would have never been repealed.

All of the money spent on the court case, the law when it was initially passed, the time removing it from the books, the man hours put in by police... all of it was a waste. It should never have been put into the books in the first place.

The Supreme Court didn't pass those laws they merely interpreted weather it went against the constitution or not.

As far as promiscuity goes, maybe with the general public where women and men feel that going without a condom is "okay" if the guy "looks" clean but smart women who value their lives practice safe sex and minimize their risks. If you need an example: the Nevada brothels vs. the general population. When done right, any sexual act can be performed with safety.
Passion51
QUOTE(Ultimatejoe @ Jun 29 2003, 03:48 PM)
QUOTE(Passion51 @ Jun 29 2003, 06:51 AM)
The problem with this decision has nothing to do with homosexuality. It has to do with state's rights. Rights to pass laws that do not violate the Constitution. A right to privacy is nowhere contained in the Constitution.

The Supreme Court decision is wrong. More than anything, it only serves to encourage legislation by the judicial branch, and even more egregious violation of state's rights.

I'm no expert, but wouldn't the 9th amendment figure in here?

No. But some might argue to the contrary.
jmunro
I don't see how this is a question of privacy in any way. I would hope that individuals would always practice sexual activities in private; but the idea that a guarantee of privacy ensures the right to homosexual acts is a bit far reaching.
Hugo
QUOTE(jmunro @ Jul 1 2003, 01:06 PM)
I don't see how this is a question of privacy in any way.  I would hope that individuals would always practice sexual activities in private; but the idea that a guarantee of privacy ensures the right to homosexual acts is a bit far reaching.

No more far reaching than the right to abortion. As a libertarian I love the decision, as a strict Constitutionist I abhor it.
Billy Jean
QUOTE
I don't see how this is a question of privacy in any way. I would hope that individuals would always practice sexual activities in private; but the idea that a guarantee of privacy ensures the right to homosexual acts is a bit far reaching


Do you know what the case is about? huh.gif

A homophobic neighbor of a gay couple calls the police and reports something about a gun in their apartment. The police, BUST into the gay couples home and finds them in the middle of sex and arrests them on sodomy charges. The so called gun was never found.
jmunro
As far as privacy is concerned, I see that the 4th amendment protects privacy in the form of protecting against searches and seizures of "persons, houses, papers, and effects," without probable cause. By anyway, the question of sodomy is of another questions, that whether such acts fall under the title of "the pursuit of happiness." In my opinion, as Mill might agree, that consensual sodomy (in of itself), causes no one unwanted harm and that should therefore be included as a personal liberty.
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Bill55AZ
QUOTE(Passion51 @ Jun 29 2003, 10:51 AM)
The problem with this decision has nothing to do with homosexuality. It has to do with state's rights. Rights to pass laws that do not violate the Constitution. A right to privacy is nowhere contained in the Constitution.

The Supreme Court decision is wrong. More than anything, it only serves to encourage legislation by the judicial branch, and even more egregious violation of state's rights.

Don't see how this is a states rights issue. "Morality" issues are not the same as criminal issues.
Actually, legislation by the judicial branch is allowed, if not directly. It is the function of the supreme court to determine constitutionality of laws passed by the legislative branch.
The majority rule concept easily leads to tyranny of the majority against the minority. It is up to the courts to protect the rights of the minorities. Otherwise, the Baptists would control the southeastern states, the Catholics would be in charge of the northeastern states, and the west would be a battle ground over who gets to be the "Moral Leaders" in those states. I am not sure where California would fit in here. Probably some far eastern religion?
Please don't tell me you want to have the Pope, Pat Robertson, Jimmy Swaggart, etc. forcing their views on the rest of us.
Billy Jean
QUOTE
Please don't tell me you want to have the Pope, Pat Robertson, Jimmy Swaggart, etc. forcing their views on the rest of us.


oh HECK no!!! I think there's a song by REM that would fit that scenerio perfectly:

wacko.gif "It's the end of the world as we know it...." wacko.gif
jmunro
Why would anyone think that as long as you act in the privacy of your own home, any act that you commit is alright as long as the law doesn't see you commit it. I think the discussion is swaying from the main point of the idea that sodomy can be shown to be a personal liberty protected under the constitution.

If I sell drugs within the confines of my own home (in private), that doesn't make it legal. Even if no one ever finds out. This is not a question of privacy, and protection of one's right to act and have security of the knowledge of those private acts. It's about those acts which one performs. Is the performance of said act within one's personal liberties:question:
Billy Jean
QUOTE
Why would anyone think that as long as you act in the privacy of your own home, any act that you commit is alright as long as the law doesn't see you commit it. I think the discussion is swaying from the main point of the idea that sodomy can be shown to be a personal liberty protected under the constitution.

If I sell drugs within the confines of my own home (in private), that doesn't make it legal. Even if no one ever finds out. This is not a question of privacy, and protection of one's right to act and have security of the knowledge of those private acts. It's about those acts which one performs. Is the performance of said act within one's personal liberties:question:


Again, what has been stated NUMEROUS times, what two consenting adults do between themselves is their right. You cannot make the correlation between selling drugs and consentual adult homosexual acts. Drug dealing, or trafficing, involves a numerous state and federal violations, can POTENTIALLY hurt society because of gang violence, addiction, theft, murder, among many others. WHAT, please tell me does homosexuality have in common with that?
Also, do you think that a straight married couple would be arrested for sodomy in the privacy of their own home? NO. This law is DIRECTLY aimed at the gay community and that is DISCRIMINATION. mad.gif
Izdaari
QUOTE(hugo @ Jul 1 2003, 11:13 AM)
QUOTE(jmunro @ Jul 1 2003, 01:06 PM)
I don't see how this is a question of privacy in any way.  I would hope that individuals would always practice sexual activities in private; but the idea that a guarantee of privacy ensures the right to homosexual acts is a bit far reaching.

No more far reaching than the right to abortion. As a libertarian I love the decision, as a strict Constitutionist I abhor it.

Exactly so. On the basis of the Ninth Amendment,

QUOTE
Amendment [IX.]

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

the case makes perfect sense. The right to privacy - which should have derived from the Ninth Amendment and not from Douglas' nebulous and mystical "emanations and penumbras" in Griswold v. Connecticut - would and should prohibit the federal government from enacting any sodomy laws. But from whence do they derive a reason for the federal government to overrule a state on that matter? That they get from the Fourteenth Amendment, and I'd have to say that's an abuse of it.

I love the decision since it upholds that government has no business legislating what consenting adults do in the privacy of their bedrooms.

And at the same time, I abhor the decision as more precedent for a dangerously broad interpretation of the Fourteenth Amendment and one more nail in the coffin of federalism.
jmunro
QUOTE(Billy Jean @ Jul 2 2003, 09:09 AM)
Drug dealing, or trafficing, involves a numerous state and federal violations, can POTENTIALLY hurt society because of gang violence, addiction, theft, murder, among many others.  WHAT, please tell me does homosexuality have in common with that?

The fact that dealing controlled substances can "potentially hurt society" is largely a result of the state and federal laws that are in place to prohibit the sale of said substances. The fact that a bad sale or trade of substances can happen without involving law enforcement officials gives rise to gang violence, theft and murder. As we both know nicotine is one of the most addictive substances known to man, and when do you think the last time was that someone murdered for their nicotine fix? Yes alcohol can be abused... but that is not a reason to prohibit its use. Just as we have a right to own a gun... an irresponsible individual may abuse their PRIVILEGE. There is no need to punish those who treat privileges with respect in the manner in which they were suppose to as responsible individuals. The stigma attached to drugs is mostly a result of the laws in place that prohibit the possession, use and sale of them.

The point before was not that drugs have anything in common with homosexuality, but that acts committed in private do not make them automatically legal. It's not true that you're innocent till proven guilty... but when you commit a crime you have done just that! Committed the crime. Whether or not you are prosecuted is another question which I feel strays far beyond the scope of the debate.

Now, if we look at the problem with laws against sodomy it becomes apparent that the stigma attached to sodomy is a result of the persecution of homosexuals. The two are not intrinsically associated but the social implications of sodomy are a byproduct of the common association of sodomy with homosexuals. Yes, homosexuals adopting a child can be detrimental to that child's mental well being. This is NOT an intrinsic matter, but a byproduct of todays social norms. It's of the utmost importance to separate the intrinsic character from the social character related to the social norm when striving to understand and reach a state of liberty and equality.
Amlord
The Supreme Court is becoming more and more "liberal" in its interpretation of the Constitution. Not liberal in terms of politics, but as an opposite of the "Strict Constructionist" position.

This case will have far reaching effects, beyond homosexuals or any other kind of sex.

The court, in essence, ruled that states cannot make laws based solely upon morality which occur in the privacy of your home. The subject most often spoken of in connection to morality is sex, but there are others. Gambling and drug use are two prime examples.

The court found that there is no pressing legal reason to legislate morality. Why should they have the authority to legislate gambling, drug use, prostitution or any other act which falls in the "morality" category?

It is striking to me how far the Supreme Court is willing to go to impose its decisions upon the states. When the United States was formed, several issues that were clearly States rights were apparent. Things that were barred from the Federal government were legal on the State level. Why? Because people could move from State to State without harming the Federal system.

One good example is the 1st Amendment "Freedom (from) religion" clause. Several states, at the time they ratified the Constitution, had state-endorsed religions. These are the people who signed onto and agreed to the terms of the Constitution.

The Supreme Court has taken it upon themselves to say to the States what can and cannot be legislated. That is a right that should be reserved for the People of the Various States.

There is already talk of a Constitutional amendment to protect marriage from the effects of this ruling. But the effects of this go far beyond simply homosexuality and marriage.
unabomber
first and foremost I think something needs to be cleared up: sodomy is not a male homosexual exclusive practice. sodomy is defined by the american heritage dictionary as: Any of various forms of sexual intercourse held to be unnatural or abnormal, especially anal intercourse or bestiality. now while gay men will certainly benefit from this proper and reasonable decision of the texas supreme court, so will many law abiding straight couples (you CAN sodomize women as well) who may have wished to try it, but had not because the law didn't allow it. (note that the texas supreme court was also the one that stated flag burning is a form of speech thus protected under amendment 1. take that as you wish)

what goes on inside my four walls, when involving consenting adults, no matter what, or where, is none of the governments business. the supreme court wisely realized this and repeal a stupid and practically unenforceable law. yes, this was a reasonable decision by texas supreme court.
Mike_Raffone
Izdaari wrote:

QUOTE
Exactly so. On the basis of the Ninth Amendment the case makes perfect sense. The right to privacy - which should have derived from the Ninth Amendment and not from Douglas' nebulous and mystical "emanations and penumbras" in Griswold v. Connecticut - would and should prohibit the federal government from enacting any sodomy laws. But from whence do they derive a reason for the federal government to overrule a state on that matter? That they get from the Fourteenth Amendment, and I'd have to say that's an abuse of it.


You nailed it.

The ninth is a Pandora's Box no court is eager to open (to the point of ignoring it into mootness) and the fourteenth is so perverted with conflicting due process and the incorporation theory anything can be squeezed from it.

The various courts have painted themselves into a corner where continuity and logical, citable precedent is just a distant memory. Every case now it seems is decided on very selective cites of case law and the crutch of weak jurists, "the facts of the case before the bar;" the case and what the judges "feel' decides the law instead of the Constitution and approved commentators.
AuthorMusician
Here's the transcript of the hearing:

Lawrence vs. Texas

The challenging side puts up two arguments:

1) Privacy

2) Equal protection

When you read through the arguments proposed and the questions/comments made by the justices, you might pick up what I did--the question of law is never done on a strictly Constitutional basis. Other factors, such as the effects on society, are considered.

Also considered is history and values.

Now some folks might call this a liberal way of judging the constitutionality of law. I, however, find it to be more reasonable than strict interpretation.

As has been pointed out, the Constitution does not have a privacy amendment directly addressing the issue of when police can come into your home. Yet we all know that a warrant is necessary before this can be done or the permission of the residents.

Texas apparently doesn't issue warrants on sodomy, and for good reason. How are you going to time this just right? Get a schedule of sex from your target? Run surveillance? The enforcement of the law then comes into question.

So if the law can't be enforced except under situations where the police happen to show up for some other reason (illegal firearms in this case), then the second argument comes into play.

But the second argument has an even better basis: You can't regulate the behavior of a group just because it is a different group from the majority. It doesn't matter if this group offends you or not. Doesn't matter if particular activities of the group go against the moral values of the majority. Something concrete has to be shown to support the law.

I liked the question to the defense about homosexuals teaching kindergarten. Would that be unconstitutional too? The answer the defense gave was, yep, if that's the only reason. But what about indoctrination into the homosexual way?

Wow! That sure opens a can of worms. Can this be demonstrated or is it conjecture? Does a five-year-old make sexual orientation choices? Please provide some evidence if you think this is true.

So, the Texas sodomy law was shown to be directed at only homosexuals. I think that was the primary reason it was struck down.

Now, where in the Constitution does it say that we have a right to equal protection under the law? It's in the 14th Amendment:

Amendment XIV
(1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I'd also go as far to say that this is the privacy amendment. If you deprive me of privacy, you have deprived me of liberty.

But what exactly is privacy? I'll define it as what we do in non-public places: homes, rest rooms, changing rooms, bedrooms. Are there laws that go against this? Some--cameras in changing rooms to thwart shoplifting, for example. Some rest rooms are awfully dang public, too--although both examples are more about business behavior than law.

Nevertheless, the most obviously private place is the bedroom. Since sexual behavior laws regarding what goes on in the bedroom can't be equally enforced, and since this particular law was shown to single out homosexuals without having clear reasons for this, the law was struck down.

I'm in agreement with this decision.
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