Texas Sodomy law struck down.

[SpoofyChop]

http://www.cnn.com/2003/LAW/06/26/scotus.sodomy/index.html

[EDIT: I couldn't do it. I can't be this obnoxious. I'm sorry Gary...I've failed you.]

Incidentally, Texas sodomy law struck down. Discuss.

[SpoofyChop]

[EDIT: Totally different post.]

So I think this was the right decision but I'm still a bit worried about the slippery slope argument.

[Mike Cathcart]

I thought you liked The Narrarator.

[SpoofyChop]

I thought you liked The Narrarator.

What kind of crazy non-sequiter is this!?

:shock:

[Jakub]

Ruling is "an undermining of our concept of justice."
What justice? Where is the harm being committed that deems this a crime? How can there be justice without the crime?

And people wonder why I can't stand being around religious fruitcakes.

[Troy S Goodfellow]

Ruling is "an undermining of our concept of justice."
What justice? Where is the harm being committed that deems this a crime? How can there be justice without the crime?

And people wonder why I can't stand being around religious fruitcakes.

I'm bothered more by Scalia's fear that the court will be seen as an advocate of the "homosexual agenda"

Troy

[SpoofyChop]

And people wonder why I can't stand being around religious fruitcakes.

I'm a religious fruitcake!

:D

[Damien Falgoust]

I wrote this analysis on another message board. You guys might be interested:

I just read the opinion (http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf) (warning: PDF file); the majority overrules Bowers outright on substantive due process grounds, while O'Conner rested her opinion on equal protection (and would have kept Bowers as good law).

Here is the key passage from the majority opinion:
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

I read this as creating a substantive due process right to any private sexual conduct, so long as:

1. It doesn't involve kids;

2. It doesn't involve coercion or lack of consent, or situations where consent would be suspect;

3. It does not include public conduct or prostitution;

4. It does not require the formal recognition of a particular relationship.

Which, it appears to me, realizes some of the fears of those who opposed this ruling. It certainly appears that adult incest and adultery are now constitutionally protected, and there appears to be a possibility that prostitution not involving "public conduct" might well also be protected (depending on how literally you take that "or").

My basic problem with the ruling is the one identified by Thomas in his dissent: there is no "right to privacy" in the Constitution; it's entirely made up by the judiciary, and that isn't their job. Their job is to interpret the Constitution, not to act as a superlegislature. The Texas law in question is unquestionably stupid, moronic, idiotic, evil, invasive, silly, and just about every other pejorative you can throw at it, and it should undoubtedly be repealed. But that fact alone ought not make it unconstitutional -- the constitution does not forbid stupidity.

Or, as the late Justice Oliver Wendall Holmes, Jr. put things: "I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It's my job."

[Jason McCullough]

Which, it appears to me, realizes some of the fears of those who opposed this ruling. It certainly appears that adult incest and adultery are now constitutionally protected, and there appears to be a possibility that prostitution not involving "public conduct" might well also be protected (depending on how literally you take that "or").

My basic problem with the ruling is the one identified by Thomas in his dissent: there is no "right to privacy" in the Constitution; it's entirely made up by the judiciary, and that isn't their job. Their job is to interpret the Constitution, not to act as a superlegislature. The Texas law in question is unquestionably stupid, moronic, idiotic, evil, invasive, silly, and just about every other pejorative you can throw at it, and it should undoubtedly be repealed. But that fact alone ought not make it unconstitutional -- the constitution does not forbid stupidity.

Or, as the late Justice Oliver Wendall Holmes, Jr. put things: "I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It's my job."

I think the constitution is there to stop laws from violating people's natural rights - which this one did. I'm not sure what the state's business with prostitution, adultery, and yes, adult incest, are.

Gay rights advocates immediately hailed the decision, while religious conservatives condemned it. In a blistering dissent, Justice Antonin Scalia said the court "has largely signed on to the so-called homosexual agenda."

Just to confirm what a bastard Scalia is.....

[Troy S Goodfellow]

I wasn't aware that adultery was a crime anywhere? I find it very amusing that the religious right which tries to keep homosexuals out of any public role does not extend the same vociferous condemnation of adulterers. One is in the commandments, one's not.

Re adult incest - it wouldn't be too hard to find a compelling public interest in preventing this. The shallow gene pool thing is an obvious issue, especially if the practice becomes commonplace in one family line. You only have to look at the decline of the Ptolemies and Spanish Hapsburgs to see that. In the cases where no procreation is likely, you could argue that adult incest confuses family roles and as such directly undermines the family unit.

And you don't need the right to privacy to strike down this law. The Equal Protection clause could have invalidated it, since sodomy by heterosexuals was not punishable. The Court has often held that the State has no power to regulate harmless behavior that goes on in private residences - way before Roe v Wade. A man's home is his castle, right? English common law recognizes this.

Troy

[Tyjenks]

Gay rights advocates immediately hailed the decision, while religious conservatives condemned it. In a blistering dissent, Justice Antonin Scalia said the court "has largely signed on to the so-called homosexual agenda."

Just to confirm what a bastard Scalia is.....

Something we can all agree on*. :) Did he describe exactly what this so-called "so-called homosexual agenda" is? I would add that he is a moron as well.


Also, can I say that the lawmakers supporting the Texas law took it up the ass on this one?

*BTW, Bill O'Reilly agrees with the court, too.

[Damien Falgoust]

I think the constitution is there to stop laws from violating people's natural rights - which this one did. I'm not sure what the state's business with prostitution, adultery, and yes, adult incest, are.
The obvious problem with that position is "who decides." Who decides what rights are "natural" and deserving of protection? If the court can make those determinations without any reference whatsoever to the text of the Constitution, then we've ceded the power to chart our own course to the judiciary. That is unbecoming of a nation dedicated to government of the people, by the people and for the people.

Lest you think this is a conservative thing, think again. It has been that over the past half-century, but at the turn of the century it was quite the opposite. At the time, many states were passing laws designed to protect workers: minimum wages, maximum hours, etc, etc. The Supreme Court overruled those laws on the same nontextual grounds it used in the case today: it created a "freedom to contract" such that the state could not set the parameters of employment, and that remained the law until FDR's New Deal court started overturning things.

Now, I'm a pretty conservative fella. I oppose a lot of those protections on economic policy grounds. But I recognize that the state has the right to pass them. That's a matter of democratic self-rule. Even though I favor the outcome, I deplore the fact that it was the court doing it. If those laws are to be dismantled, it should be the legislature wielding the wrecking ball.

The most notorious of these cases was Lochner v. New York (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=198&invol=45), by which the Supreme Court struck down a New York law regulating the number of hours a person could work in a bakery. Holmes' dissent (it's at the bottom of the linked page) is widely considered the most eloquent expression of the problems with this line of interpretation. If you're interested, you should give it a read.

[Damien Falgoust]

The decision is now up in HTML (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102), for those of you who hate PDFs.

[steve]

Something we can all agree on*. :) Did he describe exactly what this so-called "so-called homosexual agenda" is? I would add that he is a moron as well.
Or this:"It is clear from this that the court has taken sides in the culture war, departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed," wrote Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. So by voting against it, Scalia, Rehnquist, and Thomas aren't taking a side in this "culture war"?

[Daniel Morris]

"...departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed," wrote Scalia

High irony coming from the Bush 2000 justices.

[XPav]

I always suspected Scalia was a partisan hack. I haven't seen a smoking gun yet, but there sure are a lot of shell casings.

[Jason Levine]

Damien is, of course, correct that the right of privacy does not appear in the text of the Constitution. However, there are a couple of good arguments for maintaining the existence of that right that he ignores. So here goes:

1) The right may not be explicitly stated, but it can be easily inferred from the fourth amendment's protection against unreasonable searches and seizures and the due process clauses of the fifth and fourteenth amendments. If you think that making inferences from the text of the constitution is wrong, then I think you have to argue that all Supreme Court review of Congressional and state laws is wrong too. After all, John Marshall didn't find that in the text either;

2) Precedent. Scalia and Thomas notwithstanding, the Court has consistently recognized the existence of the right of privacy since its decision in Griswald v. Connecticut, some 40 years ago. Scalia groupies won't agree with me, but there should be a compelling reason to reverse 40 years of jurisprudence beyond that the initial decision was arguably wrong. If Griswald was so out of line with the intent of the Framers, 40 years has been more than enough time for Congress and the states to take corrective action via the amendment process.

[Jason Levine]

I always suspected Scalia was a partisan hack. I haven't seen a smoking gun yet, but there sure are a lot of shell casings.

I'd say his opinion in Bush v. Gore qualifies not only as the smoking gun, but as a videotape of the shooting.

[Jason McCullough]

Damien, at this point I consider arguing about constitutional law somewhat equivalent to the exams mandarins were required to take in China. Interesting exercise, little or no practical consequences when it comes to the way government is practiced itself.

You can use the constitution it to justify lots of things if you blow enough time and you have a big enough majority behind you, but it seems to serve its purpose; nothing truly egregious can sneak in. After all, they had to pass an amendment for the income tax.

[Ben Sones]

My basic problem with the ruling is the one identified by Thomas in his dissent: there is no "right to privacy" in the Constitution; it's entirely made up by the judiciary, and that isn't their job. Their job is to interpret the Constitution, not to act as a superlegislature.

Yes and no. You are correct that the right to privacy is not explicitly stated in the Constitution, but that doesn't mean that the Supreme Court overstepped their bounds with their privacy ruling in Griswold v. Connecticut (http://www.thisnation.com/library/griswold.html). The Griswold v. Connecticut opinion reasoned that many of the liberties expressed in the Constitution assumed a fundamental respect for privacy, without which these liberties would be rendered ineffectual or meaningless. The Supreme court ruled that privacy is implied in the Constitution on the basis that it would have to be in order for several of the amendments to function. They were no more overstepping their authority than Congress is when it passes laws under the "Necessary and Proper" clause.

[SpoofyChop]

I just want to go on record reminding everybody that when this was being discussed a few months ago I brought up the issue of the slippery slope.

Everybody (especially Jason) said that my concern (articulated by Santorum and others) that there would be broad consequences to this was complete crap.

Somebody even went so far as to suggest that people never even contemplate adult incest when they talk about incest.

Now, it's all anybody (http://volokh.com) is (http://www.foxnews.com/story/0,2933,90478,00.html) talking (http://www.instapundit.com/) about. (http://www.cnn.com/2003/LAW/06/26/scotus.sodomy/index.html)

I told you so.

[Jason McCullough]

I didn't expect them to overturn it on this broad of grounds. Note, however, that they did not say "adult incest is now ok" in the decision. In fact, "incest" only appears in Scalia's dissent. Curiously, bigamy, polygamy, adultery, and bestiality, appear only in Scalia's dissent. Draw your own conclusions from that little detail.

The decision does not establish (http://www.quartertothree.com/phpBB2/viewtopic.php?t=3296&start=30&postdays=0&postorder=asc&highlight=) an "absolute right of privacy in the home", per Santorum's comments. If by "slippery slope" you mean popular culture might say "if homos are ok, then what's so bad about adultery", well duh, but there's no legal slippery slope.

Interesting bit from the decision (http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf): "The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law."

I got a kick out of Thomas calling it "remarkably silly", even though he doesn't think it's the SC's business to overturn it.

[Damien Falgoust]

1) The right may not be explicitly stated, but it can be easily inferred from the fourth amendment's protection against unreasonable searches and seizures and the due process clauses of the fifth and fourteenth amendments. If you think that making inferences from the text of the constitution is wrong, then I think you have to argue that all Supreme Court review of Congressional and state laws is wrong too. After all, John Marshall didn't find that in the text either;
Inferring a broad right to privacy from the search and seizure clause is to do damage to the English language. If the framers wished for fourth amendment privacy guarantees to extend beyond searches and seizures, they could have very easily said so. They did not. Thus, the fourth amendment only protects against unlawful searches and seizures. QED.

Re: Marbury, I think even the most diehard strict constructionists would agree that judicial review is a necessary byproduct of an enforceable Constitution. There is much to criticize in Justice Marshall's opinion, but the basic concept he articulated is difficult to avoid.

2) Precedent. Scalia and Thomas notwithstanding, the Court has consistently recognized the existence of the right of privacy since its decision in Griswald v. Connecticut, some 40 years ago. Scalia groupies won't agree with me, but there should be a compelling reason to reverse 40 years of jurisprudence beyond that the initial decision was arguably wrong. If Griswald was so out of line with the intent of the Framers, 40 years has been more than enough time for Congress and the states to take corrective action via the amendment process.
Fealty to precedent would have allowed the Texas law to stand. Griswold and its progeny (including Roe) were specifically premised on reproductive choice, not on a broad-ranging right to sexual privacy. Indeed, it was upon this distinction that the court's earlier ruling in Bowers (overruled today) was premised.

Indeed, a strict following of precedent would either have left the law in place altogether or would have followed the reasoning in O'Conner's concurrence (rejecting the law on equal protection grounds because it distinguished between homosexual and heterosexual sodomy rather than b.a.n.n.i.n.g. sodomy outright).

(Side note: this stupid word filter is absurd. Prior to my change, it read "kissing sodomy outright," which left quite a different mental picture.)

Your comments on the amendment process is good for a few chuckles. Lochner today is recognized as a dramatic usurpation of legitimate power by the judiciary, but in the decades when it was good law there was no mass movement to amend the decisions away. The amendment process is simply too onerous to act as a practical check on the judiciary.

[Damien Falgoust]

Yes and no. You are correct that the right to privacy is not explicitly stated in the Constitution, but that doesn't mean that the Supreme Court overstepped their bounds with their privacy ruling in Griswold v. Connecticut (http://www.thisnation.com/library/griswold.html). The Griswold v. Connecticut opinion reasoned that many of the liberties expressed in the Constitution assumed a fundamental respect for privacy, without which these liberties would be rendered ineffectual or meaningless. The Supreme court ruled that privacy is implied in the Constitution on the basis that it would have to be in order for several of the amendments to function. They were no more overstepping their authority than Congress is when it passes laws under the "Necessary and Proper" clause.
As a matter of constitutional theory, I think Griswold was wrongly decided, too. Liberty interests protected by the text of the Constitution are not left ineffectual or meaningless without a broad privacy right. Your right to be secure in your home from searches and seizures is no less inviolate because the state can criminalize certain sexual activities or disallow birth control from the marketplace.

But as I noted above, even if we consider Griswold to be correct, the court's ruling today goes far beyond its provisions.

[Jason McCullough]

Fealty to precedent would have allowed the Texas law to stand. Griswold and its progeny (including Roe) were specifically premised on reproductive choice, not on a broad-ranging right to sexual privacy. Indeed, it was upon this distinction that the court's earlier ruling in Bowers (overruled today) was premised.

Here's (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=381&invol=479&navby=case&linkurl=http://www.aclumontana.org/rights/griswold.html&graphurl=http://www.aclumontana.org/rights/images/backlink.jpg) the Griswold decision.

Note the holdings:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U.S. 44 , distinguished. P. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 481-486.

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The [381 U.S. 479, 486] very idea is repulsive to the notions of privacy surrounding the marriage relationship.

"Right of marital privacy", not "reproductive right." Big difference.

[Damien Falgoust]

I didn't expect them to overturn it on this broad of grounds. Note, however, that they did not say "adult incest is now ok" in the decision. In fact, "incest" only appears in Scalia's dissent. Curiously, bigamy, polygamy, adultery, and bestiality, appear only in Scalia's dissent. Draw your own conclusions from that little detail.

Given the broad right the court creates today -- not just a right to homosexual sodomy, but a broad right to "private sexual conduct" subject only to the limitations I noted above -- necessarily includes at least some of the activities you list above. That the majority elected to sidestep this uncomfortable fact by refraining from using terms like "adultery" or "adult incest" does not change that fact.

I got a kick out of Thomas calling it "remarkably silly", even though he doesn't think it's the SC's business to overturn it.
Thomas' opinion is the most sensible of the bunch. It's a dumb law that should be removed from the books. But it isn't the judiciary's job to do so unless there is a clear textual basis in the Constitution. That being the case, the job must be left to the Texas legislature. That is the essence of judicial restraint.

And, lest we forget, the trend has been to remove these laws from the books. In 1961, all 50 states had sodomy laws. By 1986, when Bowers was decided, that number had been cut to 25. Today the number stands at 13, 4 of which are homosexual-specific. It would be much more sensible if the court had followed O'Conner's reasoning; that would force homosexuals and heterosexuals to live under the same stupid rules, rules that would eventually be repealed by the simple force of public opinion. Good Lord, if Georgia of all places can get rid of its sodomy law via the legislative process, I'm pretty sure any other state can, too. (CNN map of state sodomy laws (http://www.cnn.com/interactive/law/0306/sodomy.laws/frameset.exclude.html))

[Damien Falgoust]

Here's (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=381&invol=479&navby=case&linkurl=http://www.aclumontana.org/rights/griswold.html&graphurl=http://www.aclumontana.org/rights/images/backlink.jpg) the Griswold decision.

"Right of marital privacy", not "reproductive right." Big difference.

"Marital privacy" essentially means reproductive rights. Griswold itself dealt with the sale of contraceptive devices to married couples. Subsequent cases, including Eisenstadt v. Baird and Roe v. Wade extended the doctrine of reproductive choice to unmarried persons and to minors, but did not create anything resembling a broad right to sexual privacy. Or, as the court put it in Carey v. Population Svcs. Intl'l, 431 US 678 (1977) (http://laws.findlaw.com/us/431/678.html):The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. "If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453.
Suffice it to say that Griswold has never been used in support of the proposition of a broad right to sexual privacy, and has always been seen as limited to the decision to "bear or beget" a child. That remains true today: the court's opinion does not refer to Griswold or its progeny in support of their decision, outside of a historical review of the court's privacy cases.

(By the way, the numbered items you listed are part of the headnotes of the case; they are not part of the opinion proper, are not written by the justices, and are only present for convenience purposes. Do not try citing them in court; it's a bad, bad idea. :) )

[Jason McCullough]

"Marital privacy" essentially means reproductive rights.

Says who? It's not in the decision; where is it? Noted on the headnotes, though.

Your Casey quote looks like "marital privacy contains reproductive rights," not "marital privacy is defined by reproductive rights."

I read this as creating a substantive due process right to any private sexual conduct, so long as:

1. It doesn't involve kids;

2. It doesn't involve coercion or lack of consent, or situations where consent would be suspect;

3. It does not include public conduct or prostitution;

4. It does not require the formal recognition of a particular relationship.

I think this is a misinterpretation of the passage. The things mentioned are cases where the state has a compelling interest in forbidding a practice; none of them, or anything like them, applies to this case; therefore, privacy rights is not outweighed by a compelling state interest in banning the practice; therefore, the law is unconstitutional. It's not a "if it's not in the list, it's ok" enumeration.

[Ben Sones]

The decision does not establish (http://www.quartertothree.com/phpBB2/viewtopic.php?t=3296&start=30&postdays=0&postorder=asc&highlight=) an "absolute right of privacy in the home", per Santorum's comments. If by "slippery slope" you mean popular culture might say "if homos are ok, then what's so bad about adultery", well duh, but there's no legal slippery slope.

The decision also explicitly states that homosexual relations are not pertinent to state interests. Arguably, adultery is, in that marriage is a contract that is endorsed by the state and adultery is a breach of that contract.

[Jason McCullough]

Yeah, but the state doesn't arrest people for breach of contract.

[Damien Falgoust]

Says who? It's not in the decision; where is it? Noted on the headnotes, though.[/b]
Sez me, and sez just about every case to pick up where Griswold left off.
Your Casey quote looks like "marital privacy contains reproductive rights," not "marital privacy is defined by reproductive rights."
Again, we return to today's opinion. That opinion was not premised on an extension of the rights established in Griswold -- unlike the other cases, it is not written as a further elaboration of the rule announced in Griswold. Quite the contrary, it establishes a new right independently of Griswold. Griswold remains a case about the decision to "bear or beget" a child, and nothing further.

I think this is a misinterpretation of the passage. The things mentioned are cases where the state has a compelling interest in forbidding a practice; none of them, or anything like them, applies to this case; therefore, privacy rights is not outweighed by a compelling state interest in kissing the practice; therefore, the law is unconstitutional. It's not a "if it's not in the list, it's ok" enumeration.
The language of the decision is against you. The majority wrote: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."

That is very broad language. It goes well beyond homosexual sodomy, and the only things that could conceivably be read as limiting that language are the four items I listed above. Lower courts will have a very difficult time crafting exceptions to such a broad rule.

Sister-fuckers of the world, unite -- you have nothing to lose but your chains.

[Jason McCullough]

Sez me, and sez just about every case to pick up where Griswold left off.

It's not actually in Griswold, and all of your references to "cases after Griswold" don't read as such, but whatever.

If they established a new right in this case - you know, private sexual conduct with no constraints, why didn't they *say* so? [/list]

[Jason Levine]

Inferring a broad right to privacy from the search and seizure clause is to do damage to the English language. If the framers wished for fourth amendment privacy guarantees to extend beyond searches and seizures, they could have very easily said so. They did not. Thus, the fourth amendment only protects against unlawful searches and seizures. QED.

QED, my ass. I said that the right of privacy could be inferred from the 4th and 5th amendments. Which, by the way, is what the opinion of the court in Griswold said.

Re: Marbury, I think even the most diehard strict constructionists would agree that judicial review is a necessary byproduct of an enforceable Constitution. There is much to criticize in Justice Marshall's opinion, but the basic concept he articulated is difficult to avoid.

So inference is OK when it comes to enforcing the Constitution, but not when it comes to interpreting it? You're trying to have it both ways here.

Fealty to precedent would have allowed the Texas law to stand. Griswold and its progeny (including Roe) were specifically premised on reproductive choice, not on a broad-ranging right to sexual privacy. Indeed, it was upon this distinction that the court's earlier ruling in Bowers (overruled today) was premised.

Nowhere does the Opinion of the Court in Griswold limit itself to reproductive privacy. I don't know where you get that reading from. Douglas's opinion specifically mentions "marital privacy." It doesn't even mention reproduction. When I spoke of precedent, I was speaking of the precedent of an established right to privacy, not of the single holding in Bowers. There's a qualitative difference between a decades-long line of precedent and a single case.

[SpoofyChop]

Given that Damien is a lawyer, and you are an [ad hominem attack deleted by order of Tyjenks], I'm going to have to believe Damien on this one.

:twisted:

[Ben Sones]

Yeah, but the state doesn't arrest people for breach of contract.

I wasn't aware that any states arrest people for adultery, either.

[Jason McCullough]

Yeah, but the state doesn't arrest people for breach of contract.

I wasn't aware that any states arrest people for adultery, either.

Santorum was talking about how they they should be able to do so, as he also thinks they should be able to do so for homosexual sex. Adultery is sex + breach of contract; this case is just sex.

[Damien Falgoust]

QED, my ass. I said that the right of privacy could be inferred from the 4th and 5th amendments. Which, by the way, is what the opinion of the court in Griswold said.
My argument applies to fifth amendment claims as well. The basic point is simple: if the framers were looking to establish a broad right of privacy, why didn't they just say so? The fact that certain narrow privacy interests are found in the Bill of Rights does not translate into an overarching right to privacy.

So inference is OK when it comes to enforcing the Constitution, but not when it comes to interpreting it? You're trying to have it both ways here.
No, I'm not. A judicially-enforceable constitution is necessary to constitutional government; otherwise, what's the point of having a constitution? On the other hand, extratextual rights are not necessary in the same manner.

Nowhere does the Opinion of the Court in Griswold limit itself to reproductive privacy. I don't know where you get that reading from. Douglas's opinion specifically mentions "marital privacy." It doesn't even mention reproduction.
The facts in Griswold dealt with a statute regarding birth control. The holding in Griswold established nothing more than a right for married persons to have access to birth control. Later cases which specifically expanded the Griswold holding were clearly premised on reproductive choice. Those later cases made it clear that the right created by Griswold was strictly one related to the decision to bear or not bear children.

The current case does not build on Griswold: by its own terms, it is not an expansion of the rule announced in that case. Today's decision stands on its own.

SpoofyChop: while I appreciate the kind words, you shouldn't believe me just because I happen to be a lawyer. If you believe me, it should be because I have the better argument. While being a lawyer gives me a bit of an advantage in these types of discussions because I've had more exposure to the cases and statutes that make up the debate, that fact alone should not sway you. Indeed, if I have superior knowledge of the law and yet fail to communicate it effectively, then I have failed. I want to convince people on the merits, not on an appeal to authority.

[Damien Falgoust]

I wasn't aware that any states arrest people for adultery, either.
FWIW, adultery is still at least nominally a criminal offense in New York; it is a Class B misdemeanor. Cite (http://assembly.state.ny.us/leg/?cl=82&a=64).

Also, incest is a Class E felony.

[SpoofyChop]

Damien...

Thanks for the gentle attempt at correcting me. You're obviously 100% correct, but the fact is that I've given up on all that "intellectual stuff" here.

I spent a long time trying to use arguments, citing facts and figures, linking to articles, and just generally trying to be reasonable. Other than a few people who were willing to consider what I had to say, most of everybody was essentially a clone of Jason.

I would post well reasoned arguments and Jason would basically just say "nuh-uh" and ignore me. So now I just try to irritate him in the most immature ways possible.

:wink:

But you are totally correct and your reasoning is lucid and well written. Unfortunately this is probably not going to make any impact on Jason.

[XPav]

I spent a long time trying to use arguments, citing facts and figures, linking to articles, and just generally trying to be reasonable. Other than a few people who were willing to consider what I had to say, most of everybody was essentially a clone of Jason.
Its always the other guy that's intellectually dishonest. Yup.

Edit:
Edited again to add words that I forgot to type.

A quick scan of the intellectual posts in Everything Else by Spoofychop in the last 3 months finds links to the "gay issue" to

1) Volokh Conspiracy -- a respectable conservative law blog (opinion)
2) Instapundit -- a formerly respectable opinion blog. Heh.
3) Fox News
4) CNN
5) A link to a Slate opinion piece

A link to National Review (conservative opinion mag) about the gun issue.
A link to another conservative opinion blog about the Texas Redistricting.

A link to a news article about the 1st Armored not moving back to Germany after the Iraq war.

And a link to a Fox News article about Marines finding weapons grade plutonium. This of course, turned out to be not true.

So, lets see here 9 links, most going to conservative opinion blogs. The rest were "here's what this guy said" articles.

So what are these figures of which you speak?

I'd also like to point out that when you started complaining about my posts not having any numbers re: Tax Cuts I went and found you the figures from the original source.

edited one more time: Hey Spoofychop, we all know Brian Koontz is the most respected thinker on this board. What, are you gunning for his position or something?

[Jason McCullough]

Interesting, I wonder how long its been since an adultery law was enforced.

Damien, I'm just not seeing it. The one quote you included from Casey didn't read like "Griswold established a reproductive right" - it doesn't contain language resembling that.

That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut,

That's part of your Casey quote. It says a "right to privacy," not a right to keep the state out of reproduction, and refers to "contraceptive use" as a component of the right. Maybe they really mean "privacy" as a synonym for "reproductive", but I've seen nothing to indicate that. Do you have any other quotes along this line?

[Tyjenks]

Damien...

Thanks for the gentle attempt at correcting me. You're obviously 100% correct, but the fact is that I've given up on all that "intellectual stuff" here.

I spent a long time trying to use arguments, citing facts and figures, linking to articles, and just generally trying to be reasonable. Other than a few people who were willing to consider what I had to say, most of everybody was essentially a clone of Jason.

I would post well reasoned arguments and Jason would basically just say "nuh-uh" and ignore me.

FWIW, I remember those days fondly. Dr. Crypt did the same and often fell on your side and I tended to agree with you both. Spoofy deserted the EE forums all together for a while in his own Smartian mini-boycott. When he returned, he was not the same. His cynicism had tripled and his desire to debate here (read: bang his head against the wall) had been diminished to zero. Fortunately for us moderate, yet evil and hawkish, folks, Rywill and a couple of others have picked up the torch.

I can say one thing for Jason M. and Tim E., they are like pit bulls which never let go and never give up. Even when the corpse clenched in their jaws has grown as stiff as my crotch during an all-girl Spice channel marathon, they are still grinding away.

[SpoofyChop]

Hey thanks for doing that research for me dude.

So like I said Damien...I used to post links and stuff...which has now been independently verified.

:D

Actually, I'll be perfectly honest here for a second so listen up kiddies:

I think that the philosophical divide between arch-conservatives and conservatives vs. liberals and leftist has become so huge that there is almost no use discussing some of these issues. Most people who identify themselves as having a specific ideology have generally made up their minds. Having done so, members of these two camps will pretty much find the reasoning of the other group to be completely absurd.

There's a lot of lively debate that goes on between arch-conservatives and conservatives and there's a lot of lively debate that goes on between liberals and leftists, but the only thing that goes on anymore between the two opposing sides is generally fighting.

The only people left to convince are the so called "moderates." Now, if you're a moderate, don't take this the wrong way. I'm not going to say that you are a bad person. I am going to tell you that you need to make up your mind. Most of these debates contain ideas that are polar opposites. If you think that they can be "reconciled" into some moderate position, then I don't think you really understand the issue.

Hegel and his pathetic fucking dialectic can kiss my hairy ass.

So basically the left and the right constantly attempt to sway the confused "moderates" over to their side briefly. Right now there's a swing to the right because people see the right as having a better grasp of the issues at the forefront right now. (Don't bother arguing this...obviously you guys on the left think this is crap, but you have to admit that polls show that people believe this.)

Sometimes a moderate will make up his mind and join a side, and sometimes a liberal or lefty will defect to the right (like Horowitz) or vice versa.

Ir-un-antiregardless, the only purpose for discussing things in the EE forum is to improve your grasp of your own ideology, to improve your writing skills, or to mock the other dudes. (That's the fun part.)

I can't remember a single instance of anybody changing his mind because of one of these debates.

[antlers]

Personally, I'm OK with consensual adult incest being legalized as a result of this. I don't think there's going to be a rush to do it just because it's legal. Non-consensual father-daughter incest is a huge problem; brother-sister incest is an occasional aberration.

BTW, I think it is interesting that in the opinion Kennedy specifically addresses the idea of "strict constructionism" and rejects it. Kind of a poke in the eye to Scalia and Thomas.

[Damien Falgoust]

Damien, I'm just not seeing it. The one quote you included from Casey didn't read like "Griswold established a reproductive right" - it doesn't contain language resembling that.

[...]

That's part of your Casey quote. It says a "right to privacy," not a right to keep the state out of reproduction, and refers to "contraceptive use" as a component of the right. Maybe they really mean "privacy" as a synonym for "reproductive", but I've seen nothing to indicate that. Do you have any other quotes along this line?
One problem with discussing these things on the Internet is it becomes a quote battle, with people whipping out bite-sized sentences thinking that constitutes proof, rather than reading and understanding the cases, their background and history. I suppose that's a difficulty bourne of necessity, but it's disappointing nonetheless.

In this case, the paragraph prior to the one I quoted listed other cases that had established other privacy interests, including privacy interests in child rearing, marriage, education, and family relationships. The language you quote is thus a segue into the procreative-choice privacy interest established by Griswold and its progeny. It's just good writing and nothing more.

[Damien Falgoust]

Personally, I'm OK with consensual adult incest being legalized as a result of this. I don't think there's going to be a rush to do it just because it's legal.
Whatever the policy arguments favoring legalized adult incest (and, indeed, legalized adultery, prostitution, etc), the crux of the matter is "who decides?" Policy arguments such as the one you're making here belong on the floor of the legislature, not at the bar in the Supreme Court.

[Tyjenks]

I can't remember a single instance of anybody changing his mind because of one of these debates.

I thought you were interesting and clever and now I think you are a pompous ballsniffer after following some of these debates. Does that count?

Damien - the fact that you are a lawyer* in no way makes me inclined to agree with you. In fact, I am less likely if it makes you feel any better.


*Whether it was a Freudian slip or 1 1/2 beers, I, seriously, was typing the word lawyer and my fingers typed "l-i-a" and then I saw I was about to say "liar".

[Jason Levine]

Nowhere does the Opinion of the Court in Griswold limit itself to reproductive privacy. I don't know where you get that reading from. Douglas's opinion specifically mentions "marital privacy." It doesn't even mention reproduction.
The facts in Griswold dealt with a statute regarding birth control. The holding in Griswold established nothing more than a right for married persons to have access to birth control. Later cases which specifically expanded the Griswold holding were clearly premised on reproductive choice. Those later cases made it clear that the right created by Griswold was strictly one related to the decision to bear or not bear children.

The current case does not build on Griswold: by its own terms, it is not an expansion of the rule announced in that case. Today's decision stands on its own.

This is just plain wrong on every count. Griswold speaks of "marital privacy" not "reproductive privacy." And Griswold was explicitly expanded to extra-marital sexual privacy in Eisenstadt. So it's far more accurate to say that Griswold created a right of sexual privacy than it did reproductive , which is a crucial distinction when considering today's case. And as for today's case not being based on Griswold , why don't we look at the language of the opinion of the Court:

"There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)."

"The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
In Carey v. Population Services Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick."

So where the hell do you get that the Court today wasn't relying Griswold? The opinion specifically says that it's the beginning point for its decision, and nowhere in the opinion does it say that it's creating a whole new right. On the contrary, it says that Bowers was wrongly decided in light of the line of cases beginning with Griswold.

And I don't know about you, but I was taught in my Constitutional Law course that a Supreme Court holding is not limited to its particular facts unless the Court specifically says so by limiting the holding to its facts in a later case or by explicitly doing so in the holding itself, as the Court did in its egregious decision in Bush v. Gore.

[Damien Falgoust]

This is just plain wrong on every count. Griswold speaks of "marital privacy" not "reproductive privacy." And Griswold was explicitly expanded to extra-marital sexual privacy in Eisenstadt. So it's far more accurate to say that Griswold created a right of sexual privacy than it did reproductive , which is a crucial distinction when considering today's case.
You're quite wrong. Eisenstadt did not create a broad right to sexual privacy; it simply extended the rule announced in Griswold to unmarried persons. In short, it extended a constitutional right to reproductive choices -- specifically, a right to purchase birth control -- beyond married couples.

So where the hell do you get that the Court today wasn't relying Griswold? The opinion specifically says that it's the beginning point for its decision, and nowhere in the opinion does it say that it's creating a whole new right. On the contrary, it says that Bowers was wrongly decided in light of the line of cases beginning with Griswold.
If you read what I wrote above, you'll note that I pointed out that the court did cite to Griswold as part of a general review of its historical privacy decisions. But other than mentioning Griswold and its progeny at the beginning of that historical review, Griswold fails to make any other appearance in today's decision. The holding announced today is not cast as an extension of the Griswold line. It is cast as a completely new rule, loosely related to but not derived from Griswold.

I mean, really. Let's look at Griswold. Griswold is traceable in part to Pierce v. Society of Sisters (privacy right to education). Would it then be accurate to say that Pierce establishes a privacy right in birth control? I hardly think so.

At any rate, it's a wholly academic question. Today's ruling establishes a due process right to private sexual practices. Whether that is a rule already enshrined in Griswold or a new rule entirely does not change the fact that the rule now exists.

And I don't know about you, but I was taught in my Constitutional Law course that a Supreme Court holding is not limited to its particular facts unless the Court specifically says so by limiting the holding to its facts in a later case or by explicitly doing so in the holding itself, as the Court did in its egregious decision in Bush v. Gore.
Actually, I'd say something somewhat (but not quite) the opposite. A case is limited to cases involving similar facts unless it is extended by later decisions. Griswold was not applicable to abortions; it took Roe to create that right. Griswold was not applicable to birth control sales to unmarried couples; it took Eisenstadt to establish that right. The only thing that Griswold applied to at the time it was handed down was birth control sales to married couples.

[steve]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

[Lloyd Heilbrunn]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Halfway there :)

I'll print out and read the opinion at my office tomorrow and decide if I want to add to the debate...........

[Supertanker]

After a terrible experience, my wife now refuses to allow more than one other lawyer at a party or dinner we throw.

[Bullhajj]

After a terrible experience, my wife now refuses to allow more than one other lawyer at a party or dinner we throw.

Wait a second... You're a lawyer, right? That just cracks me up. God forbid your kids grow up to be lawyers. :)

[Kyle Wilson]

The basic point is simple: if the framers were looking to establish a broad right of privacy, why didn't they just say so?

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

The framers specifically state that they are not enumerating every right under the sun, and that there are inalienable rights that are not mentioned in the Constitution. I know the courts are in the habit of ignoring the ninth amendment, but I think that's a terrible shame, because it makes a much better case than trying to read some sort of implied right into the fifth amendment.

[Jason McCullough]

Today's ruling establishes a due process right to private sexual practices.

That it says nothing resembling this in the document apparently doesn't dissuade you, so you win, I guess.

And this little bit seems to imply Griswold was about more than contraception:

Casey, supra, at 851--which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education--and Romer v. Evans, 517 U. S. 620, 624--which struck down class-based legislation directed at homosexuals--cast Bowers' holding into even more doubt.

[Albert Woo]

http://www.msnbc.com/news/931895.asp?0cv=CB10

Didn't we just have this discussion?

[Captain Cookiepants]

Gay rights advocates immediately hailed the decision, while religious conservatives condemned it. In a blistering dissent, Justice Antonin Scalia said the court "has largely signed on to the so-called homosexual agenda."
Just to confirm what a bastard Scalia is.....
Did he describe exactly what this so-called "so-called homosexual agenda" is?

7:15am: Wake up
7:20: Brush teeth, check self out in mirror and suck in tummy
7:25: Crying jag
7:45: Hungry Man dinner
8:15: Continue work on Grimoire
8:20: Crying jag

[Anders Hallin]

That's an insult to homosexuals everywhere.

[Jason Levine]

Actually, I'd say something somewhat (but not quite) the opposite. A case is limited to cases involving similar facts unless it is extended by later decisions. Griswold was not applicable to abortions; it took Roe to create that right. Griswold was not applicable to birth control sales to unmarried couples; it took Eisenstadt to establish that right. The only thing that Griswold applied to at the time it was handed down was birth control sales to married couples.

Ah, but then you have to decide what is meant by "similar facts." The Supreme Court has unfettered discretion to choose which cases it accepts for review. It usually uses that discretion to either resolve conflicts among the lower federal courts or to accept cases that will have precedential value. The justices, with the possible exceptions of Scalia and Thomas, do not expect that the precedent will be used only for cases with identical facts, but for cases with analogous facts. Those analogies have always been the way that judge-made law, whether it's constitutional law or the common law, has developed. If we accept your crabbed reading of precedent, yes Scalia will be very happy because the Constitution will mean exactly the same thing now that it did at the time of John Marshall. Never mind that the Republic will have collapsed because of it.

[Damien Falgoust]

Ah, but then you have to decide what is meant by "similar facts."
Well, sure. A big part of lawyerin' is recognizing and exploiting ambiguities. Indeed, that's pretty much the alpha and omega of American legal education -- the push to get students to "think like a lawyer."

Having said that, your position is a bit at odd with reality. Griswold didn't create an abortion right; Roe did. The abortion right simply did not exist prior to Roe. And the basic reason for this is that the facts at issue in Roe are very much different than the facts at issue in Griswold. It's more than a bit absurd to say that Roe involved "similar facts" to Griswold, at least in any meaningful way.

But again, as noted, this is a wholly academic discussion: it just doesn't matter one way or the other. The Supreme Court has ruled the way it has ruled. It doesn't matter if that ruling was bourne of Griswold or if it stands on its own entirely.

[Damien Falgoust]

Today's ruling establishes a due process right to private sexual practices.That it says nothing resembling this in the document apparently doesn't dissuade you, so you win, I guess.
I wonder if you read the decision? Specifically where the court said "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime"? What part of the state cannot criminalize "private sexual conduct" don't you understand?

And this little bit seems to imply Griswold was about more than contraception:Casey, supra, at 851--which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education--and Romer v. Evans, 517 U. S. 620, 624--which struck down class-based legislation directed at homosexuals--cast Bowers' holding into even more doubt.
Two points here:

1. The quoted portion is from the headnotes, not the case itself.

2. Read Casey. It includes a fairly comprehensive review of privacy-interest cases, including reproductive choice cases like Griswold, but also including cases involving privacy interests that don't approach sexual conduct in any way, shape or form (such as Society of Sisters, dealing with education as a privacy right). That's all the quoted section is referring to.

[Damien Falgoust]

The framers specifically state that they are not enumerating every right under the sun, and that there are inalienable rights that are not mentioned in the Constitution. I know the courts are in the habit of ignoring the ninth amendment, but I think that's a terrible shame, because it makes a much better case than trying to read some sort of implied right into the fifth amendment.
The ninth amendment is sensibly understood as ensuring that the Bill of Rights is not an exclusive list -- that there are other sources of rights which are not foreclosed by the existence of the Bill of Rights. Those sources would include state constitutions and state and federal statutory law. For example, New York provides free speech protections above and beyond the parameters of the first amendment. The ninth amendment is a safeguard of Congress' and the states' authority to guarantee rights by means other than amending the federal constitution.

Anything else would basically give the judiciary de facto power to set social policy. Think worker protection laws are a good thing? Too bad if you lived a century ago, because a judicially-created "right to contract" forbids it. That sort of thing is unbecoming of a nation dedicated to democratic self-rule.

[Jason McCullough]

What part of the state cannot criminalize "private sexual conduct" don't you understand?

Because Griswold contains this:

These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.

No, that's not from the headnotes. :D

I can't find anything comparably strong asserting a "right to private sexual conduct" in the decision. Maybe in magical lawyer world a vague reference is an ironclad establishment on the level of the bill of rights, but to my plain english reading it doesn't say it establishes a new right.

The closest I can find is this:

Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

[Damien Falgoust]

Because Griswold contains this:
These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
I'm puzzled why you noted this here, as it isn't really responsive to the question I asked.

And I'm puzzled as to what your point is overall. If you read the quoted sentence in context, it is clear that the court is referring to other cases dealing with other privacy interests, and is using them to say "see, we've recognized privacy interests before." No one contests that simple fact. Indeed, if you've followed my posts here I've cited to some of those privacy cases that deal with non-sexual, non-reproductive privacy interests (e.g., Society of Sisters, et al).

I can't find anything comparably strong asserting a "right to private sexual conduct" in the decision. Maybe in magical lawyer world a vague reference is an ironclad establishment on the level of the bill of rights, but to my plain english reading it doesn't say it establishes a new right.
I quoted the full sentence straight out of the holding. It is a fairly concrete statement -- hardly a "vague reference." I'm not sure how much clearer I can be.

[SpoofyChop]

See what I'm talking about Damien?

You don't know how much clearer you can be because you probably can't be any clearer. Jason isn't going to contest your points...he's just going to ignore them.

:(

[Jason McCullough]

I do not see a "right to sexual freedom" or what have you in this:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Removing the filler:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

That's an outright declaration of a new right?

[Damien Falgoust]

I do not see a "right to sexual freedom" or what have you in this:
[...]
That's an outright declaration of a new right?
Yes, particularly given the sentence immediately preceding the one you bolded. I'm trying to decide if you're being deliberately obtuse, or if your reading comprehension skills just aren't up to snuff.

[Jason McCullough]

Mostly I'm complaining that this newly defined right is never clearly laid out as such. "control their destiny by making their private sexual conduct a crime" is kind of a backwards way of saying "private sexual conduct is a right".

[Damien Falgoust]

Mostly I'm complaining that this newly defined right is never clearly laid out as such. "control their destiny by making their private sexual conduct a crime" is kind of a backwards way of saying "private sexual conduct is a right".
Don't be absurd. Saying the state cannot make private sexual conduct a crime is no different than saying private sexual conduct is a right.

You're acting like the Iraqi Information Minister of legal debate. "There is no new right. I have not been shown where such a right was created. There is no language in the opinion that could conceivably be deemed to create such a broad right." Meanwhile the CNN insert keeps showing the text of the holding...

[Jason McCullough]

Saying the state cannot make private sexual conduct a crime is no different than saying private sexual conduct is a right.

Ok, I agree. Why didn't you say this up front? I'm not a lawyer. :D

[Desslock]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Sorry, crazy American laws regulating sexual behaviour are out of my jurisdiction.

[Lloyd Heilbrunn]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Sorry, crazy American laws regulating sexual behaviour are out of my jurisdiction.

Trust me, you will hear lots more about these issues if Canada approves gay marriage, as I understand is pending...

[Troy S Goodfellow]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Sorry, crazy American laws regulating sexual behaviour are out of my jurisdiction.

Trust me, you will hear lots more about these issues if Canada approves gay marriage, as I understand is pending...

More than pending. The national government has chosen not to appeal the Ontario case allowing gay marriage, and has agreed to recognize same sex unions - not forcing churches to sanctify any union they disapprove of, of course.

Some provinces continue to refuse same sex marriage. Alberta, the Maritime provinces, Newfoundland I think...but the national government has made up its mind.

Troy

[Desslock]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Sorry, crazy American laws regulating sexual behaviour are out of my jurisdiction.

Trust me, you will hear lots more about these issues if Canada approves gay marriage, as I understand is pending...

It's already done -- the Ontario Court of Appeal struck down the federal definition of marriage (under the Canadian constitution, marriage/divorce is within federal jurisdiction) and, since our politicians refuse to make any political decisions -- the courts have been politicized and assumed the role of the legislature, and actually wrote the new law to include gay marriage (and through the marvels of bad drafting, accidentally also provide for the marriage of man..and corporation).

But other than in Alberta, which tends to be more socially conservative (and Christian) than other provinces, it's a non-event. The federal government has stated it's not going to appeal the decision and will, instead, formally rewrite the legislation to adopt the court decision (uh, hopefully minus the corporate marriage clause).

Some provinces continue to refuse same sex marriage

It's not within provincial jurisdiction -- they really can't do anything about it, although they could presumably not recognize provincial income tax benefits dependent upon marriage, as well as not issue marriage licenses (since that's within their jurisdiction as 'property/civil rights').

[Lloyd Heilbrunn]

Okay, we need Desslock and Rob de los Rrrreyes to come in here and double our lawyer count.

Sorry, crazy American laws regulating sexual behaviour are out of my jurisdiction.

Trust me, you will hear lots more about these issues if Canada approves gay marriage, as I understand is pending...

It's already done -- the Ontario Court of Appeal struck down the federal definition of marriage (under the Canadian constitution, marriage/divorce is within federal jurisdiction) and, since our politicians refuse to make any political decisions -- the courts have been politicized and assumed the role of the legislature, and actually wrote the new law to include gay marriage (and through the marvels of bad drafting, accidentally also provide for the marriage of man..and corporation).

But other than in Alberta, which tends to be more socially conservative (and Christian) than other provinces, it's a non-event. The federal government has stated it's not going to appeal the decision and will, instead, formally rewrite the legislation to adopt the court decision (uh, hopefully minus the corporate marriage clause).

Some provinces continue to refuse same sex marriage

It's not within provincial jurisdiction -- they really can't do anything about it, although they could presumably not recognize provincial income tax benefits dependent upon marriage, as well as not issue marriage licenses (since that's within their jurisdiction as 'property/civil rights').


Yeah, I read about the case and the legislative rewrite was what I thought of as pending. What will be interesting will be American gays traveling up there to get married and screaming for comity upon their return to the States. :)

[Albert Woo]

http://www.globeandmail.com/servlet/story/RTGAM.20030628.wtoproide0628/BNStory/National/

[Toddy]

The Toronto Star today had a story that was much more specific, citing a fairly high number of marriage license applications from gay couples. Pride Week in Toronto seems to be becoming something of a Rev. Moon-type gathering.

I'm all for the civil union thing, but what worries me here is that Crouton is specifically calling this a new definition of "marriage." That bothers me, and I don't think anywhere near a majority of Canadians support that. I'm not a religious nut, a homophobe, or an Albertan, but the partnerships are very, very different in many ways and I think the new law should recognize that while still making them equal under the law. Also, this opens the door to another Charter challenge, which of course will be to force churches to marry gay couples. You know that's not far off, no matter what Crouton says about guaranteeing the rights of churches to makes these calls without government or high court interference. And it'll only be fair under the new law.

[Troy S Goodfellow]

Some provinces continue to refuse same sex marriage

It's not within provincial jurisdiction -- they really can't do anything about it, although they could presumably not recognize provincial income tax benefits dependent upon marriage, as well as not issue marriage licenses (since that's within their jurisdiction as 'property/civil rights').

That's what I meant. The marriage license/benefit thing. It's been a long time since I've read ss. 90-92, but this is what I was trying to say.

Troy

[Jason McCullough]

On a related note, check out Scalia's dissent (http://supct.law.cornell.edu/supct/html/94-1039.ZD.html) in Romer vs. Evans. The SC overturned colorado's "cities can't pass laws making it illegal to discriminate against gays in housing, employment, etc." law, and Scalia wasn't happy with it.

It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides.

The reasoning in it is wierd enough, but "disproportionate political power?" He's referring to the tendencies of cities with lots of gay citizens to pass anti-discrimination laws!

[Anders Hallin]

Is the thing in Canada marriage or civil union? Because we have civil unions already, I thought this had made "marriage" equal opportunity and not the civil union's "all equal, but some more equal than others".

[Toddy]

Marriage. There will be no difference between hetero and homosexual couples under the new federal guidelines. Although apparently most of the Liberal caucus wants Crouton to go no farther than civil unions. Of course, this is yet another legacy issue for an outgoing PM whom Stefan likes to call Dictator Retard (I love that), so not a chance in hell. There's history to be made, dammit!

[Lloyd Heilbrunn]

On a related note, check out Scalia's dissent (http://supct.law.cornell.edu/supct/html/94-1039.ZD.html) in Romer vs. Evans. The SC overturned colorado's "cities can't pass laws making it illegal to discriminate against gays in housing, employment, etc." law, and Scalia wasn't happy with it.

It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single issue contest for both sides.

The reasoning in it is wierd enough, but "disproportionate political power?" He's referring to the tendencies of cities with lots of gay citizens to pass anti-discrimination laws!


Scalia quotes can be used to frighten children into obedience :!:

[Anders Hallin]

Scalia quotes can be used to frighten children into obedience :!:
I like Pat Robertson for quoting, but I guess Scalia is a bit more relevant since he has a position of power in the actual judiciary system, which as everyone know is one part of the three-pronged American political system.

[Idar Thorvaldsen]

...Scalia is a bit more relevant since he has a position of power in the actual actual judiciary system, which as everyone know is one part of the three-pronged American political system.
Yes. The judiciary system, which is different from the Executive (aka "Government") and Solar Deliberative.

[Anders Hallin]

...Scalia is a bit more relevant since he has a position of power in the actual actual judiciary system, which as everyone know is one part of the three-pronged American political system.
Yes. The judiciary system, which is different from the Executive (aka "Government") and Solar Deliberative.
Indeed. Although I would argue that in "Government" one could include a "Legislative" branch, if one is so inclined.

[Idar Thorvaldsen]

...Scalia is a bit more relevant since he has a position of power in the actual actual judiciary system, which as everyone know is one part of the three-pronged American political system.
Yes. The judiciary system, which is different from the Executive (aka "Government") and Solar Deliberative.
Indeed. Although I would argue that in "Government" one could include a "Legislative" branch, if one is so inclined.
No, that's the Solar Deliberative. Or maybe they call it the Comitia Tributa or the Tribunes or one of those Roman political things, I don't remember.
For "Government", I'm using the British English definition, aka "Cabinet": "Regjering", you know. What the US calls "Administration," I think.

Edit 2: Spelling

[Anders Hallin]

...Scalia is a bit more relevant since he has a position of power in the actual actual judiciary system, which as everyone know is one part of the three-pronged American political system.
Yes. The judiciary system, which is different from the Executive (aka "Government") and Solar Deliberative.
Indeed. Although I would argue that in "Government" one could include a "Legislative" branch, if one is so inclined.
No, that's the Solar Deliberative. Or maybe they call it the Comitia Tributa or the Tribunes or one of those Roman political things, I don't remember.
For "Government", I'm using the British English definition, aka "Cabinet": "Regjering", you know. What the US calls "Administration," I think.

Edit 2: Spelling
I think you need to read this page (http://w1.836.telia.com/~u83602251/). RPGs aren't reality!
In the US, the slightly more real world, you are of course correct about the Legislative branch not being the Government, I got my wires crossed.

[Idar Thorvaldsen]

...Scalia is a bit more relevant since he has a position of power in the actual government.
No! The judiciary, or what that third thing in the balance of power is. Change it quick, before lawyers attack!
I never said that.
Me neither.
Hey man, I have no idea what you're talking about.
I'm talking? No, I think you're the one that's talking. About something, which is something I have no idea what is.

[Anders Hallin]

...Scalia is a bit more relevant since he has a position of power in the actual government.
No! The judiciary, or what that third thing in the balance of power is. Change it quick, before lawyers attack!
I never said that.
Me neither.
Hey man, I have no idea what you're talking about.
I'm talking? No, I think you're the one that's talking. About something, which is something I have no idea what is.
That's certainly not MY voice I'm hearing, so logic clearly states that it must be yours!

(also, I'm going to bed)

[Idar Thorvaldsen]

[See above... While you still can!]
I'm talking? No, I think you're the one that's talking. About something, which is something I have no idea what is.
That's certainly not MY voice I'm hearing, so logic clearly states that it must be yours!
Ah, but we're typing.
In the US, the slightly more real world, you are of course correct about the Legislative branch not being the Government, I got my wires crossed.
Noo(2)! Change it quick, before lawyers attack!

Etc
I think you need to read this page (http://w1.836.telia.com/~u83602251/). RPGs aren't reality!
Neither is the US political system. I mean, that whole USA thing is just something our state news services invented to cover the slow news season thing, right?

[Desslock]

no matter what Crouton says about guaranteeing the rights of churches to makes these calls without government or high court interference. And it'll only be fair under the new law.

There's no chance of that. Freedom of religion is also constitutionally protected, so the government could never require religious leaders to recognize a ceremony that their religion prohibits.

[JeffL]

Ya know, it's awfully hard to discuss this ruling without it getting into emotional territory. Understandable.

I like the ruling in many ways. The last thing I want is the government deciding what I can do sexually in my home. I'm pretty Libertarian in many ways.

But. What bothered me was, in reading and re-reading the majority opinion, as written by Kennedy, this seems to have little to do with legal and constitutional application and more to do with a declaration of cultural status. Kennedy spent a LOT of his opinion all manner of what sounded like a political speech more than he did strict application of constitutional law. I'm not a lawyer, so I figured I'm missing something. But I did get to chat about this yesterday with a legal professor from a major university in Ann Arbor, said professor being an expert in constitutional law. He applauded the decision from what he thought was morally correct, but he said that if you were in the camp that the Supreme Court should be interpreting and ruling from a basis of constitutionality, this was a REAL stretch.

The logic, as we discussed it, has lead me to believe that there's no way this is NOT a cultural opinion rather than a legal, constitutional one. Kennedy states that, basically, "The petitioners are entitled to their private lives" "the state cannot make private sexual conduct a crime". But - while such broad statements are made in the ruling, it is restricted, or so seems the intent, to homosexual conduct. (NOTE FOR KNEE-JERKERS - I do NOT think homosexual acts in the home should be illegal. I'm more fascinated by the legal direction the Court is taking, and what seems to be beyond its true juridiction, IMO.) But why then is bigamy not considered to have the same protection? Why is prostitution not given the same freedom? There are numerous sexual practices that could be given the same "freedom" - but for whatever reasons, they are not culturally acceptable. The same arguments Kennedy makes in this case could be applied to a wide range of behaviors. So in essence it is a moral judgement - it certainly isn't an interpretation that we have an inalienable right to do whatever we want in the privacy of our homes. I don't smoke pot or do coke, but I doubt the courts would rule that I have the right to do so. So is it only sexual acts that the constitution gives me the right to freely practice in my home? If so, then, the question comes down to which ones. And that then becomes a cutural issue, otherwise it is simply anything that does not violate the rights of either person involved. Which would include a number of things that are not considered legal.

Interesting stuff if you can separate the emotional knee-jerks.

[Jason McCullough]

There's all sorts of interesting little subdivisions - adultery (for married parties) and bigamy can be looked at as violation of contract; prostitution imposes significant costs on non-participants (though, like drug illegalization, I think this is entirely due to its prohibition), whatever.

That "the right to privacy/sexual freedom/whatever" isn't in the Constitution doesn't mean it doesn't exist, however; Madison was pretty clear about unenumerated rights and all that.

[JeffL]

Yeah, I hear what you're saying Jason, but there is nothing in the ruling (or the Constitution) that says you have a right to this sexual practice and not that one. If the Court rules that anything sexual you do in your home is constitutionally protected, then I hardly see how anyone could be prosecuted for sex with an expensive call girl - there's no one being victimized there. Polygamy must be Constitutionally protected - if I want to have 10 wives and they are all cool with it, how can that be not Constitutionally protected? The age at which a child can be considered to have an informed decision on sex has varied wildly over the years. And so on and so on.

Just for a fun specific - is there any way that Polygamy, with full consent of all parties, can not be Constitutionally protected under this ruling? Heck. the more I think about it. the more I see that prostitution, in the privacy of my home, must be Consitutionally protected - according to Kennedy "The petitioners are entitled to their private lives" and "the state cannot make private sexual conduct a crime". I can't see how prostitution laws can be upheld. If Jason wants to have sex, and a woman is willing to sell that to him, as long as they keep it private and don't do it in the street, that must be protected.

By the way, I'm not arguing for or against any of these practices, nor am I upset over the ruling (the sodomy laws are dumb and most states were already getting rid of them) beyond observing that the Court is becoming more and more about "feelings" than law, just trying to make an argument that the ruling is purely a cultural value judgement and not a constitutional ruling.

[Anders Hallin]

I can't see how prostitution laws can be upheld. If Jason wants to have sex, and a woman is willing to sell that to him, as long as they keep it private and don't do it in the street, that must be protected.
Not necessarily, since that would fall under trade laws, or something, which could regulate it on the basis of other instances.
Also, if the US actually had laws regarding acceptable working conditions, then that would be an issue as well.

[JeffL]

I can't see how prostitution laws can be upheld. If Jason wants to have sex, and a woman is willing to sell that to him, as long as they keep it private and don't do it in the street, that must be protected.
Not necessarily, since that would fall under trade laws, or something, which could regulate it on the basis of other instances.
Also, if the US actually had laws regarding acceptable working conditions, then that would be an issue as well.

Aw. C'mon. Trade laws? What trade law would prevent this? Obviously any law that prevented this, in the privacy of your home, would be unconstitutional. Acceptable working conditions? (Actually the US has a HUGE inventory of acceptable working condition laws regulating sound, air, breaks, etc. - go look at the OSHA rules.) Heck, a nice home or apartment would hardly break any working condition laws.

[Anders Hallin]

Aw. C'mon. Trade laws? What trade law would prevent this? Obviously any law that prevented this, in the privacy of your home, would be unconstitutional. Acceptable working conditions? (Actually the US has a HUGE inventory of acceptable working condition laws regulating sound, air, breaks, etc. - go look at the OSHA rules.) Heck, a nice home or apartment would hardly break any working condition laws.
You sell a service. There are plenty of services that are regulated in some ways.
It's not so much the where that would be the problem, more the what. Having sex can be very risky business, so I'm guessing the rule-set would have to be quite massive.

I would, by the way, not be against prostitution being legal if it wasn't, as it is today, a symptom of certain unwanted social structures.