Reply With Quote[EDIT: Totally different post.]
So I think this was the right decision but I'm still a bit worried about the slippery slope argument.
http://www.cnn.com/2003/LAW/06/26/sc...omy/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.
[EDIT: Totally different post.]
So I think this was the right decision but I'm still a bit worried about the slippery slope argument.
I thought you liked The Narrarator.
What kind of crazy non-sequiter is this!?Originally Posted by Mike Cathcart
:shock:
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"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
I'm a religious fruitcake!
:D
I wrote this analysis on another message board. You guys might be interested:
I just read the opinion (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:
I read this as creating a substantive due process right to any private sexual conduct, so long as: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.
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."
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.
Just to confirm what a bastard Scalia is.....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."
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
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?
[size=2]*BTW, Bill O'Reilly agrees with the court, too.[/size]
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, 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.
The decision is now up in HTML, for those of you who hate PDFs.
Or this:So by voting against it, Scalia, Rehnquist, and Thomas aren't taking a side in this "culture war"?"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.
High irony coming from the Bush 2000 justices."...departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed," wrote Scalia
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.
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.
I'd say his opinion in Bush v. Gore qualifies not only as the smoking gun, but as a videotape of the shooting.
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.
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. 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.
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 is talking about.
I told you so.
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 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: "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.
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.
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.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.
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.
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.
Here's the Griswold decision.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.
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."Right of marital privacy", not "reproductive right." Big difference.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.
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.
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.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.
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)
"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):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.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.
(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. :) )
Says who? It's not in the decision; where is it? Noted on the headnotes, though."Marital privacy" essentially means reproductive rights.
Your Casey quote looks like "marital privacy contains reproductive rights," not "marital privacy is defined by reproductive rights."
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.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.
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.
Yeah, but the state doesn't arrest people for breach of contract.
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