How Republicans Made Their Peace with Sodomy

The GOP's selective case against judicial activism

(Page 2 of 2)

There are a few possible explanations for that. Maybe Republicans think sodomy laws are impossible to justify and secretly don't mind that the court struck them down. But that amounts to favoring judicial activism if you like the results, which is exactly what they lambaste liberals for doing.

Or maybe it's because, though they would prefer for the court to uphold sodomy laws, they fear the political consequences of saying so. But that suggests that when the court's activists imposed their moral preferences, they were also "imposing" those of the American people.

Or maybe it's because they realize that laws trampling liberties most people take for granted can't be squared with the spirit of freedom and equality that defines the Constitution—even if the letter of the Constitution has nothing obvious to say on the particular matter at hand.

Senate Republicans may vocally oppose judicial activism. But sometimes, they really, really don't want to fight it.

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  • Suki||

    Good morning reason!

  • ||

    ONLY GOD CAN JUDGE YOU, EVERYONE SHOULD RESPECT EVERYONE IN THIS REPUBLIC... MANDATORY JOINT CUSTODY FOR ALL UNWED PARENTS SHOULD BE VOTED INTO FEDERAL LAW IN THIS U.S.A. UNION; HEY LETS STOP THE WAR ON FAMILY. WILLIE LINCH'S SOUL IS IN HELL ETERNALLY BURNING, ALONG WITH MILLIONS OF MISGUIDED SOULS. ITS TIME WE MAKE THE PLAYING FIELD FAIR, DOWN WITH RELIGION MIXING WITH LAW, " KEEP THEM SEPARATED, ITS ESSENTIAL "...

  • Fiscal Meth||

    YOU'RE WEIRD DUDE...

  • Fiscal Meth||

    ...BUT A-MEN TO KEEPING RELIGION AND LAW SEPARATE...

  • Brick||

    ...I DON"T KNOW WHAT WE'RE WELLING ABOUT...

  • Suki||

    But this sentiment is not exactly sweeping the country—even the red states. GOP senators had the chance to ask Kagan what she thought of the sodomy decision, and not one of them did.

    Sounds like it swept the GOP senators on the committee. Is there a poll of the elected GOP out there against the Lawrence case?

  • Jerry||

    How Republicans Made Their Peace with Sodomy


    Does it involve an airport bathroom stall?

  • Ray||

    How come nobody is keeping track of Larry Craig's sexcapades now? Isn't his wife tired of him cruising Idaho's rest stops yet?

  • Mark Levin||

    I got the feedbag hooked on!

    This is High Pitch Spermy Voice!!!!

    Get down! Jew bitches!

  • Mark Levin||

    Read my book!

    I hate niggers and Jews!

    I hate Barney Frank!

    Goddamn!

    Goddamn!

    Goddamn all liberals!

  • Mark Levin||

    Michelle Obama... that ape lipped goddamn liberal....

    Fuck that bitch and put her to death!!!!

    Goddamn

    Godmann!!!

    God dasmn everyone!

    God damn!!!

    God damn!!!!!

    Mark Levin here! High pitch spermy voice!

  • John McCain||

    I don't give a shit about niggers.

    Except for JD Hayseed, of course.

  • Ed Schultz||

    I wish I could get that much attention...

  • scineram||

    Yes, another bullshit sc decision. It fits well with Roe and other Warren era nonsense.

  • ||

    Certainly wouldn't want a bedroom without a government agent present; just to keep things on the up and up you know. Do you have your sustaining membership at bigbrotherluvsus.com?

  • Michael Ejercito||

    Certainly wouldn't want a bedroom without a government agent present; just to keep things on the up and up you know. Do you have your sustaining membership at bigbrotherluvsus.com?


    Are you aware that there are states that have laws against bigamous cohabitation? Clearly, such laws can not be enforced without police snooping into people's bedrooms.

  • ||

    Clearly such laws should not be enforced or even passed...anyone test their Constitutionality?

  • Michael Ejercito||

    Clearly such laws should not be enforced or even passed...anyone test their Constitutionality?


    Murphy v. Ramsey, Church of Jesus Christ of Latter-Day Saints v. United States .

  • juris imprudent||

    Yes they can be enforced without intrusion, if someone files a complaint. It is leftie-stupid to throw out the assertion that the police would snoop in every bedroom, or randomly in the hope of catching someone breaking such a law.

  • shrike||

    Like dipshit fearmongers who falsely cry -"They comin' to git mah guns!"

  • Barack Obama||

    Hush, shrike. You'll give away what I'm planning for the near future.

  • AlmightyJB||

    I’m pretty adamant about having this government agent in my bedroom to punish me whenever I do something naughty.

    http://dyna.forplaycatalog.com.....dyna1kLKay

  • Jeffersonian||

    This is a perfect example of how "Constitutional" is not synonymous with "libertarian." As usual, Clarence Thomas gets it right with Lawrence.

    My thought was that had the decision gone the other way, the Texas legislature would have been under great pressure to repeal its law.

  • qwerty||

    Exactly. Just because a law is stupid doesn't mean it's the court's job to overturn it. Since regulating sexual activity is not an enumerated power of Congress, the Federal government wouldn't have any legal right to pass this law. But states don't have enumerated powers. The court had no basis to overturn it. This is a classic case of judicial activism.

    Yes, I think sodomy laws are bad, too. That means I will be more likely to vote for a legislator who is against them than for them. This is a job for state legislatures to decide, not the courts.

  • Admiral Ackbar||

    How soon we forget the Ninth Ammendment. Just because "however you get your freak on is cool" is not enumerated within the Bill of Rights does not mean that it does not exist. Similarly, how exactly is the law supposed to be enforced, without violated 4th, 5th, or 6th ammendment rights?

    Some neighbor complained because they heard two male voices during sex? Maybe it was a three-way. Maybe it was two dudes mastrubating. Maybe someone is into gay porn.

    Ultimately, the "liberty" clause of the 14th, the 9th's general language, and the 4th, 5th, and 6th, all are meaningless if the State can, as Griswold v CT put it, "be leering on a ladder at the second story window".

  • juris imprudent||

    If SCotUS had actually relied on the 9th in Griswold, it would've been much better law. Instead they just fucking made it up - including "leering in the window", since the law in question wasn't about behavior in the bedroom it was about the sale of contraceptives.

  • Admiral Ackbar||

    Not just sale, but also instruction on how to use them, etc.

    I agree that Griswold was more of a commerce issue(hell, given the Court's leaning at that point ie Heart of Atlanta Motel, Ollie's BBQ, they could have just relied on the ICC), but I do love the "leering in the window" phrase.

    Always makes me think of a cop wandering around with a giant ladder, and then falling off, Animal House-style.

    And honestly, the Court uses the Ninth like a cook uses oregeno. It's great to throw in there, but they never try to make a full meal out of it.

  • shrike||

    nice quips but you make no sense.

  • WTF||

    Well, with your level of reading comprehension and degree of understanding of con law and SCOTUS jurisprudence, perhaps.

  • Jeffersonian||

    The Ninth is, as I see it, an empty vessel that can be filled with things both good and bad. It doesn't mean that everything that hasn't been restricted yet is therefore a right, it just holds out on the possibility that there are natural, liberty rights that have yet to be defined.

    Of course, it might also mean that things like a guaranteed income, health care, housing, food, etc. are also "rights."

  • Admiral Ackbar||

    I fully admit that the Ninth is fuzzy, and can be bent to whatever political leaning one has.

    On the other hand, I do believe that if the government were to mandate, "All intercourse must take place in the missionary position" that that would violate some intangible "natrual right" that, while undefined in the Constitution, existed nonetheless.

  • shrike||

    I don't have a "natural right" to a hot lesbo 3-some that includes 'ass-to-mouth'?

    God damn, I knew natural rights were a cover for the Catholic Church - those ass-fucking anti-premarital sex jackasses!

  • ||

    Apparently it doesn't prohibit homosexual copulation with underage males.

  • Michael Ejercito||

    I fully admit that the Ninth is fuzzy, and can be bent to whatever political leaning one has.


    How about restricting the Ninth to whatever rights were generally recognized at the time the Ninth was ratified?

    Sure, you might have to ratify a constitutional amendment to prevent Congress and the states from enforcing anti-sodomy laws (as we had to ratify the 19th Amendnent to prevent Congress and the states from denying suffrage on the basis of sex) but then we would not have to worry about courts defining an entitlement to health care as a fundamental right.

  • Admiral Ackbar||

    Limiting it only to those rights at ratification is risky, as I see it. The Founders were not monolithic, and they did not see everything the same way. Adams, for example, did not have a great respect for freedom of speech, as the Alien and Sedition Acts show, and while Jefferson may have believed that slavery was a moral evil, he didn't free Sally Hemmings or any of her kids. Hamilton was a fan of kings, and would have been a proponent of the Fed, has such an idea existed. Furthermore, the Bill of Rights was originally written to exclusively apply to the Federal Government, and the 14th dramaticallly altered that.

    While it is prefectly reasonable to argue against the incorporation doctrine, that doctrine allows me to buy porn in Alabama and guns in Chicago. It ensures that we recieve "Due Process" in all 50 states (although I am more sympathetic to the "Priveleges and Immunities" argument, but them damn carpetbaggers killed that one in Slaughterhouse). As the famous Carolene footnote argues, certain rights/laws are too important to leave it up to the state as "labratories of democracy". And while I realize that this is the liberal argument against the state suit of the federal health care bill, I hate to say, I agree with them there.

    No, I don't support Obamacare. But I don't think that the states have 10th ammendment standing. They have ICC standing, but that is only because, taken to an extreme, the logic of Wickard if frickin' retarded(I don't have as big a problem with NLRB v. Jones and Laughlin Steel Co. Broad decision, yes, but it doesn't affect individual action- and the argument that without it, you would have the rise of local monopolies is a solid one).

    Ultimately, the 9th is tricky, but to go totally originalist is stupid. There is no one "orignialist" persecpective (see Calder v Bull, where one justic relies on Blackstone), but multiple ones. Hell, for all we know, one or more of the Founders was a closeted gay, or really enjoyed oral(I'm looking at you, Franklin, you French-knobbing stud!).

  • Sarah||

    I understand the concern about using the Ninth to endorse positive "rights," but has it ever been used in that way? I don't think it has. In general, I think our Supreme Court has done a fair job of protecting individual freedom. Based on past experience, I would be comfortable letting the Court give meaning to "rights . . . retained by the people." Of course, I'd be even more comfortable if we had an Amendment clarifying that no positive rights (to health care, jobs, etc) are recognized under the Constitution.

  • Sarah||

    I agree. While I think it is vital to maintain the distinction between policy preferences and what the Constitution actually says, it is not clear-cut to me that the Constitution as written does not protect people in their bedrooms from being "unreasonably seized."

  • ||

    as a tea-party activist I see the sodomy laws as BIG GOV'T, so they are bad. I do not want ANY gov't intervention in my house or my bedroom. I am married, and have been for 39 years, but what WE do in the bedroom is our business. What YOU do in your bedroom is YOUR business, NOT the governments. PERIOD. Do you want them to also tell you HOW you can have sex? What you wear while you have sex? where does it stop!

  • Yonemoto||

    Republicans would do well to admit that there's room for judicial activism, so long as the judicial activism is in the direction of limiting government power.

  • pmains||

    But is it really "activism" for the court to uphold the Constitution? I thought that activism was when they court makes law rather than interpreting it. Last time I checked, the Constitution is law.

  • WTF||

    "the Constitution is law."

    Sure, that's a nice, platitudinous truism, but that's about as far as it goes. Sure, the Constitution is law, but what does it say about sodomy? Not a damn thing.

  • Sarah||

    I used to have this debate with my Con Law prof. I posit that all the Court can do is state that certain areas are immune to government regulation. But it cannot require state or federal Congressional or Executive action. In other words, it could say that the right to engage in sodomy is one "retained by the people" or that regulation of such is an unreasonable seizure. But it cannot require any other branch of state or federal government to engage in any action, such as creating a system to meet a so-called right to healthcare.

    Can anyone provide any examples that the Court does do the latter?

  • Creamy Goodness||

    I think the whole debate fizzled because neither side could come up with catchy phrases like pro-life/pro-choice!

  • ||

    where does it stop!

    With a safe word?

  • Suki||

    + the internet!

  • ||

    Given that Thomas' dissent explicitly approved of the outcome while deploring the process there does not seem to be that much mystery here. If conservatives want to bash liberals for their contempt for the constitution and rule of law there are plenty of cases for them to disapprove of both the process and outcome. As Bork found out in his confirmation hearings, you can shout all you want about the difference between the two, but no one will listen.

  • ||

    Actually there's a simpler explanation: Republicans realized that judicial activism is the best way to get their agenda implemented as well, as the Constitution annoyingly doesn't cover things like restricting marriage rights or teaching the bible in public schools (the creationism part at least) and various other things that the de-Libertarianized Republican Party now stands for.

  • Michael Ejercito||

    Republicans realized that judicial activism is the best way to get their agenda implemented as well, as the Constitution annoyingly doesn't cover things like restricting marriage rights or teaching the bible in public schools (the creationism part at least) and various other things that the de-Libertarianized Republican Party now stands for.


    When were they Libertarianized?

    Back in 1854, the Republican Party denounced the twin evils of slavery and polygamy. Note that polygamy includes consensual private conduct.

    And as for the Constitution not covering restricting marriage rights, that issue was settled with Reynolds v. United States , Davis v. Beason , and Murphy v. Ramsey .

  • ||

    Supposedly, they were Libertarianized when Reagan was around. Guess they lied...gee, politicians lying, guess I should be shocked or appalled or something.

  • ||

    "Or something" is prabobly most appropriate.

  • ||

    as the Constitution annoyingly doesn't cover things like ... teaching the bible in public schools (the creationism part at least)

    Yeah, that 1st Amendment is such an ambiguous part of the Constitution.

  • ||

    Seems to be. You're allowed to say anything you want unless it pisses off. The state shall make no laws respecting religion, but disrespecting religions and atheism is OK, and you absolutely have the right to bear arms, just not to actually USE arms to defend yourself, particularly from your friendly neighborhood government. Oh and you have the right to a free press, but they're free to become paid propoganda outlets.

  • Pedant||

    The state shall make no laws respecting religion, but disrespecting religions and atheism is OK...

    If you're going to refer to the First Amendment, at least use the right words:
    "Congress shall make no law respecting an establishment of religion..."

    Words mean things.

  • ||

    More to the point, the word "respecting" in the First Amendment is a synonym for "related to" or "having to do with," and is NOT the opposite of "disrespecting."

  • OK GOP||

    They want to allow the states to put gay and lesbian all couples in jail for something (oral or anal sex) that millions of heterosexual couples do all the time.

    FTFY

  • Michael Ejercito||

    They want to allow the states to put gay and lesbian all couples in jail for something (oral or anal sex) that millions of heterosexual couples do all the time.


    The GOP had supported laws against bigamous cohabitation in the 19th century.

    They are simply returning to their roots.

  • Some dude||

    GOP senators had the chance to ask Kagan what she thought of the sodomy decision, and not one of them did.

    It isn't exactly polite dinner table conversation. Who would be jumping at the chance to use their time in a formal hearing to ask if she thought people had a constitutional right to... you know?

  • ||

    Plus, what's the point? She's pretty much a doctrinaire liberal, so what are the odds she has a problem with Lawrence?

  • juris imprudent||

    The problem with Lawrence is that it overturned Bowers. Where is that progressive/liberal love for stare decisis? It would've been a good question to ask - not that she would've answered as she perfectly utilized the evasion technique she previously criticized.

    Now, the truly spectacular question would have been why she was doing exactly what she had criticized, rather than engage in a substantive discussion with the Senate as Bork did.

  • ||

    yeah, and the problem with Brown was that it overturned Plessy - Stare decisis is like the commerce clause - an excuse, not a rationale

  • shrike||

    Wahhabi Christians in the Republican Party are becoming more polished in the public relations area. They may all think like the Rev. Fred Phelps but they know he doesn't play well to the middle of the electorate.

  • ||

    1. How many people do you think support the Reverend (and I use the term loosly) Phelps that are not related to him by blood or marriage?

    2. Explain how you are not just a hating POS and not just the flip-side of the Phelps clan.

  • shrike||

    The dogma that Phelps spews is no different than that of Jerry Falwell, Pat Robertson, and about 25 million of their "born-again" shit-for-brains followers. Phelps just doesn't have a TV show yet.

    "The week of September 11th, 2001, Robertson discussed the terror attacks with Jerry Falwell, who said that "the ACLU has to take a lot of blame for this" in addition to "the pagans, and the abortionists, and the feminists, and the gays, and the lesbians [who have] helped [the terror attacks of September 11th] happen." Robertson replied, "I totally concur." (Wiki)

    The fact that they make up the base of the GOP is your problem - not mine.

  • ||

    They'res a reason for separating Church and State. The whole of stupidity is usually greater than the sum of its parts.

  • BakedPenguin||

    That's a good line, if a little clunky. I'm going to steal it but drop the modifier.

  • Jeffersonian||

    The reason the GOP doesn't think like Phelps is that Phelps was, is, and always has been a Democrat. He's run for office several times as one.

  • shrike||

    Liar! Phelps is - oh, hell, you're right. But he's STILL a Republican!

  • Jeffersonian||

    How long will it be before Grand Cyclops Robert Byrd is made a GOPer?

  • Tony||

    How cold does his corpse have to get before disingenuous asshats stop using him to excuse all racism by Republicans and libertarians?

  • Jeffersonian||

    Until Democrats stop thinking the solution to forced segregation is forced integration.

  • Tony||

    So affirmative action is something the KKK would support?

  • Fiscal Meth||

    You know he recruited over a hundred new clansmen too, right Tony?

  • tarran||

    Accusation's of racism are rich coming from someone who supports the Bacon-Davis act.

  • The Libertarian Guy||

    Aww... too soon, Tony?

    Look, the fucker got away with being a former Klan poobah. No one right-of-center can get a pass like Byrd did.

  • Mr. FIFY||

    I hope he's being fed pina colonics in Hell.

    And that's just for having shit named after him.

  • Satan, LLC||

    I got on that the moment the old fucker showed up in My Domain. I've got Hitler on pineapple duty, and tomorrow is Two-fer Tuesday, bitches.

  • Zell Miller||

    I'm a Democrat too.

  • George Wallace||

    Me too!

  • Ronald Reagan||

    I was until the Democrats started agitatin' for niggers.

  • Jeffersonian||

    And commies.

  • ||

    These people "make up the base" of the GOP? I'm skeptical.

  • juris imprudent||

    It is the left's version of "welfare queen".

  • ||

    Phelps is the base of the GOP the way Bill Ayers is the base of the Democrats, except Democrats actually have dinner with Bill Ayers.

  • shrike||

    Remember that the next time the GOP frontrunner is stumping at Bob Jones University right before the SC primary.

    Or John McCain is genuflecting over an endorsement from crazy Armageddon Zionist John Hagee.

    Or Sarah Palin has her witch-doctor on call.

  • Jeffersonian||

    Because, as we all know, making a 30-minute speech at BJU means you are in total agreement with its beliefs, whereas sitting in the pews for 20 years while your pastor rails against Jews, Italians and whitey while heaping praise on Louis Farrakhan doesn't mean shit.

  • shrike||

    You should change your name. Jefferson pretty much pissed on your Bible.

    So by your weak shit Jefferson hated Christians.

  • Jeffersonian||

    Behold the Mother of all Non-Sequiturs.

    Gawd Damn America!!!

  • The Libertarian Guy||

    Phelps ran as a Democrat. So did Frazier Glenn Miller, a Missouri racist thug who has tried to hijack his way onto Republican and LP tickets in the past.

    Of course, we turned his racist ass down, and refused his filing fee. But he did file first as a Democrat.

  • Carl Levin||

    Who would be jumping at the chance to use their time in a formal hearing to ask if she thought people had a constitutional right to... you know?

    That would be shitty.

  • ||

    "GOP senators had the chance to ask Kagan what she thought of the sodomy decision, and not one of them did."

    Because senators don't really care about her answers. She'll get confirmed regardless.

    They only ask questions so they can take credit for being "on the record" on whatever cause or principle will come in handy at the next election.

    And for most senators, having one's name in any way associated with buttseks probably doesn't help one's re-election.

    Santorum.

  • shrike||

    "Santorum".

    Good riddance to unwanted fecal matter.

  • The Libertarian Guy||

    I had the same reaction when Robert Byrd finally took the dirt nap.

  • shrike||

    I bet you support David 'Mud Blower' Vitter and his fecal matter deposits into a diaper of his whore's choosing.

    Gotta love family values hypocrites with that (R) by their name.

  • Sex-crazed poodle||

    You're barking on the wrong blog, dude. I'm pretty sure no one here disagrees with the whole politician sexual hypocrisy thang.
    Let's discuss AGW!!!1!!1!!1!!111!!

  • tarran||

    Mr Poodle,

    You don't understand; shrike only hates republicans (actually I don't think he hates them, I think he fantasizes about being penetrated by them in bouts of rough anal sex); Democrats, on the other hand are merely fallible humans not worth criticizing in any heated manner.

    Thus, if you criticize a Democrat in his presence, he freaks out until someone brings up Republicans engaging in homosexual acts. After about 30 minutes of posting on the subject, he seems to get positively lethargic - I try not to imagine why...

  • Tipper||

    Oh, he might as well. Al has been fucking anything but me lately.

  • The Libertarian Guy||

    Fuck off, shrike. I support no such person.

  • ||

    There are many issues on which politicians enjoy the cover of the courts deciding the issue and they don't have to take a stand on either side when both sides are fairly evenly matched. This is hardly the biggest one-- by far the longest-running and most consequential one is abortion. Hundreds of Democrats and no small number of Republicans are grateful to Roe for allowing them to avoid having to take a definitive position and just tinker around the edges in spinnable ways.

  • J. Edgar Hoover||

    I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.

  • ||

    I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.

    Oral sex means one less act of genital sex, which means one fewer condom used, which means one less condom purchased from an out-of-state (probably) condom manufacturer, which obstructs interstate commerce. That was easy.

  • WTF||

    What if we have condoms that were manufactured only in the same state where the purported offense occurred, and which are sold only that state?

  • hohoho||

    "That's right. They want to allow the states to put gay and lesbian couples in jail for something (oral or anal sex) that millions of heterosexual couples do all the time."

    AKA before you get married.

  • WTF||

    No shit.

  • Sarah||

    LOL!

  • ||

    Oh wow, OK that makes a lot of sense now.

    Lou
    www.total-anonymity.es.tc

  • Some Guy||

    I'm pretty sure it's the second reason, and definitely sure it's not the third.

  • rah62||

    They didn't ask Kagan because they were caught before the hearings trying to call her a big fat lesbian, so if they started asking questions about gay sex, they would have been accused of raising the lez card again.

  • Cyto||

    I think "judicial activism" has been co-opted as a slur just as "liberal" was co-opted first as a cover then later as a slur.

    "Judicial Activism" originally referred to "the court creating law" out of whole cloth. Like many decisions during desegregation, forced busing of students in and out of cities came largely from the courts. Redrawing voting districts was done by courts without any clear authority to do so, etc.

    We then see the same rhetoric applied to another decision unpopular with social conservatives - Roe v. Wade. This case is not "activist" in the same sense at all. It is "activist" in the sense that it is pushing society in a direction that large swaths of the population do not want to go, and at a pace they cannot adapt to.

    In my mind this is a perversion of the "activist" tag. There were lots of similar decisions in the same time frame that had a similar effect - that of pushing people in a libertarian direction that they were not comfortable with. Free speech was a major hub of activity at the time - pornography and political speech (flag burning, other protest acts) were being rewritten in the national consciousness. Most of these decisions were not "activist" in the sense of "inventing new law" or stepping beyond the bounds of constitutional judgment. Their collective weight was activist in the sense that laws that were popular were overturned and changed by the courts.

    We currently see the same logic being applied to the Roberts court. Citizens United was not a close case. There should never have been one vote at any level of the judiciary allowing restrictions on political speech by anyone. There's clear precedent and the language of the first amendment is crystal clear in case anyone couldn't figure it out from first principals. And yet we have a big chunk of society up in arms over this "judicial activism".

  • The Angry Optimist||

    We then see the same rhetoric applied to another decision unpopular with social conservatives - Roe v. Wade. This case is not "activist" in the same sense at all. It is "activist" in the sense that it is pushing society in a direction that large swaths of the population do not want to go, and at a pace they cannot adapt to.

    Except the court did create law out of whole cloth - all it had to do was declare that abortion was constitutionally protected (a la the recent McDonald case), but leave it to the states to craft laws as they saw fit. Inventing the "trimester" test was ridiculous.

  • WTF||

    Inventing the "trimester" test was ridiculous.

    Well they had to split the baby somehow.

    Ha! See what I did there?

  • ||

    I have mixed feeling on that article. I don't care what people do everybody has the right to the persecute of happiness, but I don't like it when if involves special treatment, like transgender bathrooms in restaurants and giving 9 year old's books in school like Bobby has two Daddies or lisa has two Mommies. Kagan has no business being a supreme court judge. She's nothing but a Marxist.
    It' human nature if you give someone an inch they want to take a yard.

  • Ernie the Bear||

    "It' human nature if you give someone an inch they want to take a yard."

    There's gotta be an awesome sodomy joke in there, but I'm too lame to find it.

  • ||

    "Persecute of happiness?"

    I assume you mean "pursuit"... or is than another Reason inside joke?

  • juris imprudent||

    It is now.

  • ||

    So respecting the First Amendment rights of people to write and distribute books about the reality of gay parents is giving gays "special rights"?

    *rolls eyes*

    Whatever retard.

  • josey||

    A bit weak in the comprehension dept., are we? He didnt' say write and distribute books, he said give them.

    Let's see if you can figure out what that implies.

  • Tony||

    That children shouldn't be given books about mommies and/or daddies?

    Or is it okay as long as they're heterosexual parents?

  • josey||

    You can do better than that.

  • Jeffersonian||

    No, he can't.

  • Tony||

    Hey, I can't help it... I only give a shit about gay issues. You fucking breeders can all die, for all I care.

  • Tony||

    Did the court mandate transgender bathrooms at some point?

    What are you bitching about exactly? Different types of people make you queasy, so even if the market acknowledges their existence you take umbrage?

  • Fiscal Meth||

    I assume he meant *mandated* trans-gender bathrooms. As in, the building inspector will not pass you untill your building is deemed trans-gender compliant. Any business that wants to should be free to provide a third trans-gender bathroom if they feel like it. If it helps bring in more business, other companies might copy the model.

  • Tony||

    Correct me if I'm wrong but I don't think there is even a law mandating separate bathrooms for the sexes.

    But ranting against imaginary "special treatment" for people John finds abnormal isn't anything new for him.

  • Fiscal Meth||

    I don't know what John has said before but from my experience in the building trades, special treatment mandates are not imaginary.

  • Tony||

    What you call special treatment others might call equal access.

  • ||

    I'm sad to say it, but there are too many people who believe that anything short of regular beatings by police is "special" treatment. I think that most of the "take a yard" stuff comes around because too many want to take away the inch we've been given.

  • ||

    And when I say "given", I mean: "fought like holy hell to get".

  • ||

    The whole of stupidity is usually greater than the sum of its parts.

    Call it the Moron Network Effect.

  • juris imprudent||

    I don't know, that is a pretty good description of the Puritan mentality - are you happy? We will persecute you!

  • ||

    I don't care what people do everybody has the right to the persecute of happiness,

    Ouch. RC'z Law strikes again.

  • Ted S.||

    A lot of people get their jollies persecuting others who have the "wrong" lifestyle. Look at the treatment of marijuana users or people who don't eat the approved diet, for example.

  • AlmightyJB||

    I don't think the republican party really gives a crap about this issue. They'll drag at out as meat for the socons, especially at a election time. Other then that, they don't really care, which is why it pretty much died after the ruling.

  • ||

    Quite a few members of the Republican party gives a crap about this issue -- you know, the socon wing.

    But, this is seen by most rational Rs as an issue that can cost them votes, so they pick their battles.

  • ||

    Ugh, just awful. The GOP is only slightly the lesser of evils.

  • josey||

    It is not lesser; there is only one evil.

    Picture a coin with a red and blue taijitu imprinted on one side; on the opposite side, the word Freedom.

  • ||

    Senate Republicans may vocally oppose judicial activism. But sometimes, they really, really don't want to fight it.

    It's at least better than vocally *supporting* judicial activism.

  • ||

    It's at least better than vocally *supporting* judicial activism.

    Or orally supporting it.

  • Van||

    When will the Christian Right realize that they are not a majority and they need libertarians to get elected?

    When will they recognize that a Balanced Budget Amendment is more important than the fact that somebody, somewhere, is having a good time?

  • tarran||

    The Christian right are being played so adroitly by the Republican leadership that I doubt they'll come to their senses until the U.S. defaults on its bond obligations.

    They'll just keep chasing that carrot of abortion-abolition being held perpetually just out of reach in front of their noses by the Republican leadership, pulling them across the 50% line.

  • Fiscal Meth||

    In heaven there is a big budget surplus waiting for them to spend. And the roads are paved with stimulus.

  • ||

    As noted above, SCOTUS can and should strike down sodomy laws under the Ninth.

  • josey||

    Good thing that we have a federal government to protect us from runaway state governments. And vice versa.

    That should work pretty...oh, shit.

  • Tenth Amendment||

    I am SOOOO lonely!

  • Barack Obama||

    La la la la I'm not listening to the Tenth Amendment la la it doesn't exist la la la...

  • Tony||

    What's wrong with the 14th?

  • tarran||

    The 14th really protects no rights - at least according to the Supreme Court.

    Despite the plain text, the Court still sticks to the doctrine that it invented to allow states to have Jim Crow laws; that so long as there was 'due process', state governments could violate people's rights till the cows come home.

    Thus, if the court were to begin claiming that anal sex was a right that state governments had to respect, they're scared that next thing you know, they'd have to overturn laws allowing the government to dictate what prices people had to charge for stuff, and then all hell would break loose.

  • WTF||

    How does the 14th protect the right to a BJ?

  • Tony||

    It protects the right to substantive due process before such privacy can be violated; in addition (as Justice O'Connor argued) it protects equal protection, which is violated when such a law targets a specific group.

  • ||

    The GOP probably figures this law sucks.

  • The Libertarian Guy||

    "excuse all racism by Republicans and libertarians"

    What "all racism by libertarians", Tony? The shit you make up, or the very very few real instances where libertarians go off the rails into racism land?

    "Because I said so" isn't proof, by the way.

  • ||

    I don't know if you noticed, but "because I said so" is considered by the Left to BE adequate proof.

  • The Libertarian Guy||

    I know, I just like tweakin' the little critters.

  • Tony||

    Oh I dunno, I seem to remember a bunch of people on this very blog making tortured arguments against the Civil Rights Act because of the unalienable right of business owners to keep out black people.

    I know you think it comes from a place of ideological purity rather than racism. Personally, I think that if your ideology demands tolerating systemic racism, then you should shop around for a new one.

  • WTF||

    Oh, for fuck's sake. You apparently are unable to distinguish a belief in the liberty of contract from "racism." If some ignorant douchebag doesn't want to serve food to black people, it seems to me it's his right to be an ignorant racist douchebag. And it's my right to not do business with him when I discover his practice. Soon enough, he'll either be doing business only with other idiot racist douchebags, and likely eventually be out of business.

    You apparently lack the capacity to understand that the principle is not founded in racist beliefs. Quite to the contrary, actually.

    The ideology does not "demand tolerating systematic racism," you disingenuous fucktard.

  • Tony||

    But it does, and one wonders why non-racists find it necessary to bother their pretty heads over long-settled case law in this matter. If you can't get to a place where the legal breakthroughs that allowed racial minorities to participate more fully in their society are accepted as not only legal but represent a highly admirable evolution of the law, then why should anyone pay attention to anything else you have to say?

  • Sarah||

    You couldn't be more wrong. Nothing about our belief system demands tolerating systematic racism. All it demands is refraining from using certain weapons to fight institutional racism.

    Like many liberals -- who would ban certain weapons altogether or who embrace the concept that a response to violence should be measured -- we believe that only certain infractions should be met with the power of governmental force.

    Racist restaurant owners can be successfully dealt with through lesser means. Because the risks of using governmental force to police such infractions are simply too great, we would reserve that "weapon" for much greater crimes.

    I guarantee that you hold analogous beliefs.:-)

  • Tony||

    I get it--as long as the federal government isn't doing it, it's not oppression.

    Seriously, you lost this argument in the 60s. And it is the same argument.

  • Sarah||

    What...? What the word "oppression" means might be an interesting semantic discussion, but it doesn't seem like the point of this conversation.

    I don't have any problem acknowledge that racism is oppressive. But that gets us no further in determing what is a proper response.

    If a racist chains a child to the back of his pick-up and drives through his hick town, that is a crime that merits a response backed by the full force of the government. I don't think the vast majority of self-described libertarians would disagree. And if that racist is shot and killed by a vigilante and I were on the jury, I would be sorely tempted to exercise jury nullification to acquit the vigilante. Again, I think many libertarians would agree.

    But, what about the death penalty? While I think the person should die, I oppose the death penalty because the risks of that sort of government force are too great. I think many, many self-described liberals would agree.

    I could say, "If your belief system requires you to let men who drag children behind trucks continue to live, you should shop around for a new one." But, that trivializes the reason people oppose the death penalty.

    By the way, trying to win an argument by suggesting that the other side "lost the argument in the 60s" is a logical fallacy known as argumentum ad populum.

  • Tony||

    Let me see if I can restate my point. The arguments used here against the CRA are exactly the same ones used by opponents in its day. That argument has since been recognized to be weak philosophical cover for racism. Now, I don't think the libertarians making the case today are racist, I just think they're ignorant of the history of their argument. I agree that mine is not a rigorous argument with regard to a philosophy of government, I'm just saying that it is (outside libertarian circles) beyond dispute that the good that came from civil rights advances in the 60s far outweigh the alleged creep of government power--society is much better off, regardless of how you feel about federal power.

    Does this indict all of libertarianism as completely out of touch with any sliver of practical reality? You be the judge.

  • Sarah||

    In my humble opinion, ideas have merit - or not - regardless of their historical success or failure. Until the majority endorsed the concept that racial equality should be mandated, the majority endorsed the concept that racial *in*equality should be mandated.

    I believe that both of those propositions are objectively wrong, regardless of how many people have, historically speaking, disagreed with me.

    I also think the weighing act that you are trying to do (benefits of the Civil Rights Act versus detriments of creeping federal power) is more difficult than you acknowledge.

    I readily acknowledge all the benefits. But how could we possibly weigh the detriments when history is ongoing? As we accustom ourselves to government essentially legislating politeness, we inevitably confront government-funded universities requiring students to sign written contracts before they attempt to neck. Or, municipalities outlawing Happy Meals.

    And then, once we have accustomed ourselves to those very minor, practical and beneficial exercises of government power, what lies after? And after that?

    I don't want to live in a word where our meals and exercise regimen and love lives and conversations and thoughts are regulated so as to achieve an ideal state of being. If I have to limit myself to weapons other than government force to respond to racists - in order to prevent that creep - it's a trade-off I am willing to make. I would rather draw the line in the sand long before it feels necessary than find out too late that it is indeed too late.

    I'm sure you think I'm being melodramatic. But getting back to the point of the article, historically speaking, sodomy has been the "losing argument."

    Sexual preferences should be free from government intrusion for the same reasons that other purely private preferences should be free. Personally, I believe that homosexuality is a perfectly normal, healthy human variation. While racial bigotry is not.

    But, I avoid having to convince anyone of the former, by making room for even the latter. People of your political persuasion however place yourselves in the position of having to convince someone that homosexuals should have rights *for policy reasons,* rather than principled ones. Imagine how much nicer it would be if that were not the case.

  • Tony||

    As I don't see anything nefarious or unconstitutional about the CRA, the downsides are rather few. If the objection to it is that it's unconstitutional, then I say a constitution which doesn't allow the CRA is a flawed one. But we can happily dismiss that particular angst by appealing to case law reality.

    So the philosophical objection is a sort of slippery slope argument. If government is allowed to dictate this, what's to stop them from dictating that? The answers are: what it's allowed to do and what the people want it to do. Most "nanny-state" laws have popular support in their jurisdictions. I don't like a lot of them, but local governments are relatively free to enact them--the feds are much more restricted, of course. I guess I'm just far, far less concerned with these occasional local impositions than with major abuses of power such as torture. Your fear is based on a slippery slope toward dental floss police. If there are no bright lines, and the slippery slope so possible, then why have government or rules at all?

    I'm not sure what you mean about policy reasons vs. principles. Homosexuals should have equal rights because they are due them according to the US Constitution. Dunno whether that's policy or principle, but there is certainly principle behind it.

  • ||

    YES, BEWARE OF ELEPHANTS SPORTING DONKEYS ATTIRE... DECEPTION

  • Fiscal Meth||

    "Personally, I think that if your ideology demands tolerating systemic racism, then you should shop around for a new one."

    You mean like if your ideology damands that you excuse former clansmen by saying things like "he was just a southern boy trying to get elected" so long as he agrees with you that the government should have unlimited reach and power?

    Shop around indeed.

  • Tony||

    I see your ex-KKK member, the late Sen. Robert Byrd, and I raise you the entire GOP, whose existence relies on stoking the racial resentment of white Southerners, even in 2010.

  • ||

    Funny how we can put names to celebrated racists in the Democrat Party, but all you seem to be able to do is offer generalisations....hmmm, wonder why that is?

  • Fiscal Meth||

    To the extent that this is true(not to the extent you claim), why would this make me blush. I hate that shit too. I don't support the Grand Old Party.

  • Tony||

    I apologize for implying you are carrying GOP water in any way. Robert Byrd notwithstanding, I'm with the party that in its current incarnation has fought and shed blood in the cause of racial justice, and I get really tired of rightwingers who wear their racism on their sleeves trotting out Byrd as if his past indicts an entire party and excuses another one.

  • ||

    Byrds' past? How about Davis? How about the founders of the Klan? How about every national Klan politician we've ever had? How about passing Jim Crow laws? Fighting for segregation?

    Your party isn't tarred by Byrd--it's exemplified by him.

    If it were only Byrd you might have a leg to stand on.

  • Tony||

    The only reason Byrd is relevant to this re-writing of history is because he lived so freaking long. As you well know the parties realigned along segregationist/desegregationist lines, and the only Democratic party I'm interested in is the one that exists today: the one that southern racists abandoned in favor of the GOP, which to this day uses racial scapegoating as one of its primary means of motivating voters.

  • ||

    As you well know the parties realigned along segregationist/desegregationist lines, and the only Democratic party I'm interested in is the one that exists today: the one that southern racists abandoned in favor of the GOP

    Except for the inconvenient truth that this never happened. The Democrats who fought against the CRU and Civil Rights for blacks were re-elected as Democrats and died as Democrats in most cases. When did Fullbright become a Republican?

    Strom Thurmond get a lot of flack. But he wasn't a Klansman--and he actually DID flee the party of slavery for the Party of Lincoln. Was it a redemption? Who knows--but the idea that the racist Dems would flee the Democrat party for the party that was, from it's inception, their sworn enemy is just stupid.

  • Fiscal Meth||

    Then I guess the only thing that you and I disagree about is whether the law should issue racial justice(or any group justice) or only individual.

  • Fiscal Meth||

    I guess that changed while I was typing.

  • ||

    RIGHT ON BROTHER. FINALLY, SOMEONE WITH SOME SENSE, HEY MAN RUN FOR PRESIDENT. ITS TIME! WE POOR BLACKS, AND WHITES JUST GOTTA QUIT BICKERING! WE'RE FIGHTING, AND KILLING ONE ANOTHER WHILE THE SONS OF GUNS WE PUT IN TO OFFICE GET RICHER! POOR PEOPLE UNITE! STOP FIGHTING OVER THE CRUMBS THAT ARE LEFT BEHIND UNDER THE TABLE ON THE FLOOR. UNITE, AND EVERYONE SHARE IN THE TURKEY FEAST! HEY BRO, GOD BLESS YOU!

  • Fiscal Meth||

    THANKS FOR THE COMPLIMENT BRO. I WILL RUN FOR PRESIDENT RIGHT NOW. YOU SCARE ME!

  • ||

    Wasn't Lawrence resolved on equal protection terms? I thought it got tossed because the anti-sodomy law was only being applied to homosexuals--straight sodomy, even though subject to the same law, was not prosecuted.

    I didn't consider that judicial activism

  • Tony||

    Four justices in the majority based it on due process (right to privacy). The other one (O'Connor, who was in the majority in Bowers), based it on equal protection (it wasn't being applied to heterosexuals).

  • ||

    It seems the 4th amendment protects homosexual acts so long as their taking place in private places; it's the whole "secure in their houses" thing. So there really is no imposing of morals on this issue. That's a big assumption in this article, and unfortunately the point of the entire article rests on it.

    Roe vs. Wade and prayer in schools are different in their own ways: Roe vs. Wade is still contentious because the definition of an individual still isn't abundantly clear, and prayer in a public school is a much more public act than sex in a private bathroom.

    So it's really no surprise that the one issue is fairly well settled and the other two are not.

  • Chase||

    Just some food for thought... Thomas Jefferson supported castration for sodomy at the state level and he and James Madison corresponded about the bill and was the one who had told him that the bill had failed by 1 vote and there was never any indication James Madison opposed the bill.

  • ||

    Sorry but this article glosses over conservative politics. The article presumes a level of homophobia of conservatives which is simply absent. No one cares what gays do in their bedroom. It is what they do in public which is disturbing.
    Abortion is still a matter of killing babies no one said sodomy does that.

  • Chuck Anders||

    "What the Republicans want are judges who will apply the Constitution according to the original meaning as understood by the framers."

    Really? They want a constitution where slavery is legal, only property owners are allowed to vote and anyone who isn't an adult white male is not considered a human being?

    I doubt it.

  • ||

    YEA ITS TIME THE FEDERAL GOV'T REVISE, AND END ALL SENSELESS, STATE, AND LOCAL LAWS THAT CONTRADICT AS WELL AS VIOLATE THE U.S. CONSTITUTION. YES IT IS TRUE A FEW BAD APPLES CAN SPOIL THE POT; SUCH AS U.S.A. PRESIDENT NILES MC KINLEY " GRAND WIZARD OF THE TERRORIST GROUP KKK, HERE ON FREE AMERICAN SOIL ". SO YES WE HAVE TO CLEAN AMERICA'S HOUS OF ALL REDERRICK, AND RETARDATION. ITS TIME TO HEAL AMERICA, DOWN WITH ALL SUPREMIST GROUPS!... GOD BLESS OUR GALAXY

  • ||

    Among true libertarians, there should be no argument whatsoever about whether sodomy, polygamy, or abortion should be illegal. If the Constitution can be used to justify state intervention in these activities, then the Constitution is flawed from the perspective of protecting individual liberty.

  • Scarpe Nike||

    is good

  • Jordan Shoes||

    so perfect.

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