From: Platt Holden (pholden@sc.rr.com)
Date: Sun Jul 06 2003 - 19:01:42 BST
Hi Rick,
On the issue of the recent supreme court decision overturning a state law
criminalizing sodomy, I have some disagreements with your views.
> 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.
You have accurately described how an activist court, one that puts its
personal biases ahead of the written law, comes to its decisions. It
imagines something in the law, in this case a "liberty interest," that is
not specifically found in the Constitution. Instead, using the
Constitution as a kind of Rorschach test, members of the court call upon
their own social or political prejudices in making their decision.
> 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.
The 10th Amendment is specific in what rights are left to the states to
determine: "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved for the
States respectively, or to the people."
RICK
> 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'.
Again, "freedom of intimate association" is nowhere to be found in the
Constitution. The Founding Fathers did not fight the Revolutionary War
over a right to homosexual sodomy, nor did the Constitution drafted a few
years later create one.
> 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'?
You are questioning the good faith of Texas citizens and their elected
representatives not to mention their right to determine community moral
standards. My disagreement is not whether the sodomy law is "good" or not.
My argument is that it was not good for six individuals on the Supreme
Court to impose their beliefs on an entire state when those beliefs were
no where to be found in the Constitution.
> 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).
In his opinion Justice Kennedy said the case "involves the liberty of the
person both in its spatial and more transcendent dimensions." That's as
big a blow of personal morality gas as I've ever smelled, unsupported in
law or common belief, probably because no one knows what the hell it
means.
> 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.
It was under no obligation to review this case.
RICK:
> 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.
Individuals are also the public? That's a new one on me. I always thought
the public interest was defined by the greatest good for the greatest
number. But, I digress.
> 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.
When the National Opinion Research Center at the University of Chicago
asked people in 2002 about sexual relations between two adults of the same
sex, 53 percent called them always wrong and 5 percent almost always
wrong. But, that's neither here nor there. The Supreme Court isn't
supposed to reflect the latest Gallup poll; it's supposed to apply the
Constitution to legal questions, and interpret the Constitution as
written, not as the Court might wish it was written.
RICK
> 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.
That's one interpretation, somewhat prejudiced against religion wouldn't
you say? How as it a "minority" if the law was placed on the books by the
majority vote of a state legislature?
RICK
> 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.
Homosexuals were prevented by the sodomy law from becoming a majority? I
don't see the relevancy. By sheer lack of numbers gays can never become
the majority. Anyway, gays are not what I'm arguing for or against. What I
see is a minority on the supreme court deciding for a majority in Texas
what their standards of decency ought to be. I do not like to see the
judiciary encroaching on legislative territory. That way lies tyranny.
Platt
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