Liberation Day

The ruling in Lawrence v. Texas presents a rare case of stand-up-and-cheer language in a Supreme Court majority opinion. From Justice Kennedy's ratio:

Liberty protects the person from unwarranted government intrusions into a a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. […] It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another peson, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

As they say, read the whole thing.

This is actually an even more important victory than it may appear at first. As Joseph Landau noted in an excellent New Republic article (reg. required), while sodomy laws are rarely enforced, they have been used as an excuse for public school administrators to suppress the formation of gay student groups and to justify state discrimination against homosexuals in hiring for government jobs.

Anyway, Rick Santorum's doubtless upset, but this is unambiguously good news. Go out and celebrate in a suitable way with a person of the apposite sex.

Comments

[Tommy_Grand]

That is a great GREAT GREAT!!! ruling for us all. WOW! I am cheering at my desk. Seriously.

[Steve in CO]

What bothers me is that it wasn’t a slam dunk, 9 to nothing decision.

Thomas, Scalia, and Rhenquist would have had it the other way.

Also, I noticed with a shudder, Scalia fomented the shibboleth of the “homosexual agenda.”

He probably believes that asking people to not abuse, attack, or overtly discriminate against gays, is the same thing as recruiting their children to the “lifestyle,” of homosexuality.

And what else is sad, the two justices who voted with the majority in this case of obvious privacy issue are going to be retiring soon. And Bush isn’t likely to pick anyone who supports privacy in the home.

[Scott Ott]

Of course, the news isn’t all positive.

[B]

What about the fact that the 10th amendment clearly puts this area of law solely in the jurisdiction of the states? The feds (including scotus) have no say in this. As Scalia said, the court is creating a new federal right, where no existed previously.

[Julian]

A lot of powers that had been left to the states under the 10th Amendment were then revoked by the Fourteenth. State censorship was originally a-OK under the 10th amendment too… we changed the law.

[Anonymous]

Yeah, you win some you lose some. Like the Feds have implemented the national do-not-call list, which is just wrong on so many levels. When will the Feds ever learn to stop trampling on our freedoms?

[Qoheleth]

B: The Fourteenth Amendment struck down racially discriminatory laws by requiring that all laws, including those by individual states, provide equal protection under the law to all. To me, Scalia’s dissent makes some good points against the majority opinion (but then, maybe it’s because I’ve never fully understood substantive due process), but it falls completely flat when he tries to undermine O’Connor’s concurring opinion, which relies on equal protection rather than due process.

[John Thacker]

I still cannot find in my copy of the Constitution this doctrine. And I am profoundly suspicious of a Constitution where judges may invent doctrine as it so pleases them. In the long run, allowing Constitutional rights to shift without actual amendments or laws being passed is likely to lead to less, not more liberty, in my opinion.

I cannot see how this is “unambiguously good news.” The ends are reasonable (and in this I join with Justice Thomas), but certainly there is some ambiguity about the means.

[B]

So, what I want to know is, did the court decide that (1) homosexuality is a fundamental right or (2) doing whatever you want in your bedroom is a right? I’m pretty sure the issue wasn’t that this law banned homo but not hetero sodomy.

If the answer is just (2), then can the state criminalize 2 men kissing in public? If it’s (1), then that opens a whole new set of questions about gay marriage, etc.

[Larry]

Today is a good day for freedom.

However, I note the following from Scalia’s dissent: “[the Texas sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.”

The mere fact that he can write this without even a trace of irony is evidence of the long road ahead for those of us who love freedom.

[dude]

These laws 1) suck and 2) are very selectively enforced. Good riddance.

Am I nuts or is the “homosexual agenda” something that you’d expect a low-rent televangelist to rant about, not a freaking Supreme Court Justice??

[Savagely Disgusted]

The neo[decepti]cons are gonna be packin’ the fudge (and courts 🙂 tonite!

[Tommy_Grand]

The USSC did not create a new right today. The court extended an existing right – a right we all enjoy – to include people who are gay. If you want to quibble about the creation of the right to privacy (which I will admit is VERY hard to find in the Constitution’s text) you may. I agree that this right was built by the federal judiciary atop a dubious foundation (from a doctrinal, textual, or historical perspective). But, unlike the nakedly contradictory, ends-justify-the-means affirmative action decision, Kennedy’s pro-freedom, pro-liberty, pro-privacy ruling is has, at least, a solid basis in caselaw. I am happy with the case’s specific outcome and I happy to have 6 votes in support of some strong language that will prove helpful in future suits attempting to protect our freedoms and expand our liberty.

[joe]

People who want the government to choose your sex partners are too stupid to rule their own state, Scott.

[John Thacker]

I certainly agree that this ruling follows from Roe and Griswold and is merely a small step in the already invented doctrine. By itself, it surely is not a huge break with legal theory. I definitely admit that.

Balancing that, one has to admit that these laws are going away (present in 13 states, down from 28 when Bowers was decided,) and that these laws are not actively enforced. So the good of this decision is mostly symbolic as well.

Regarding Scalia’s quote: “[the Texas sodomy law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery,” I have to say that, on its face, that statement is true. Laws prohibiting all those things do indeed impose constraints on liberty. Many libertarians would agree, though disagreeing about the rightness of those laws.

[Murderers!]

Good thing crossburnings are still legal protected free speech. Oh wait… it’s “hate” speech. I forgot, my bad.

[B]

Again, reading Kennedy’s opinion, he justs gets on a soapbox and praises “liberty”. I see no substantive Constitutional reasoning. At least O’Connor points out equal protection in banning only homo, but not hetero, sodomy.

Are we better off when justices can simply make up laws (even if you agree with the outcome of this case)?

It seems the court included gays into rights heteros have long had, privacy in the bedroom, based on “liberty”. But gays were left out of that group based on moral and historical objections. What about the other groups left out of this right based on morality? What of their “liberty”?

[joe]

SCOTUS fans:

Does 17 years set a record for the fastest Supreme Court self-reversal?

[Tommy_Grand]

“It seems the court included gays into rights heteros have long had, privacy in the bedroom, based on “liberty”. But gays were left out of that group based on moral and historical objections. What about the other groups left out of this right based on morality? What of their “liberty”?”

If your argument/question is: doesn’t the reasoning behind this decision support the legality of any two (or more) consenting adults engaging in any kind crazy of sex in their bedroom, living room, kitchen, dungeon, etc etc? I’d say: well, yeah. But it doesn?t legalize bigamy or polygamy (that involves the right to marry) nor does it allow bestiality, rape, or pedophilia. It may allow adult, consensual incest – which is super super gross – but that’s their private business IMO.

[Croesus]

In the Anglo-American system judges have always made law. Why this is shocking to people is beyond me.

[Croesus]

BTW, this is the first major expansion of the “right of privacy” since 1973; also, it clears up a lot regarding to the “right to sexual privacy” (which I have always viewed as the heart of Eisenstadt v. Baird decision of 1972).

[Jim Walsh]

Civilization is still standing. Who-da thunk it?

[The Black Jesse Helms]

Finally. Hopefully all that gay chic (shit) that’s been all the rage since it was so *gasp* illegal and dangerous can all go away now and I can stop hearing about all the oppressed gays and their “struggles” for equality.

[savage michael]

It’s really confusing when people say there is no constitutional right to privacy. That doesn’t make sense.

Scalia is a prejudiced piece of crap. During the oral argument for this case, the defendant’s lawyer, Smith suggested that there would need to be some showing that gay kindergarten teachers produce harm to children in order for the state to find a compelling interest in banning gay kindergarten teachers. Scalia offered one: “Only that children might be induced to follow the path to homosexuality.”

Does this guy have a brain?

[joe]

If Anonin Scalia was my kindergarten teacher, would I have become a dishonest prick?

[Disappointed in Denver]

I find the Supreme Court ruling problematic in their moral equivalency of gay sex with heterosexual sex. In gay sex there is no possibility of conception, whereas in heterosexual sex there is the possibility to bring life into the world. Why should they be treated equally? Clearly, the bias should have been upheld. I congratulate the three brave judges of the minority who stood against such grave injustice. It was a travesty and I hope to see it overturned when more proper people are put on the Supreme Court.

I recently read the birthrate of the United States has reached record lows. This kind of behavior does NOT need to be encouraged. Especially, when we need to stay vigilant against the foreign encroachment of immigrants. (European and Latino alike, thank you very much.) We need to keep our great and noble nation strong. Striking down laws that discourage untoward behavior does not accomplish this and is leading our country down the path to immorality and destruction.

[Warren]

Who knows the reasoning of a USSC justice? Being able to think in ways more convoluted than any other man is what makes one worthy of the appointment in the first place. There is however, no question that this law was unconstitutional on equal protection grounds, as it applied only to homosexual sodomy while permitting heterosexual sodomy.

I personally believe that the private behavior of consenting adults is protected under the ninth amendment. But that’s not as straight forward.

Still a correct decision by the USSC, however convolutedly arrived at, is a rare and joyous thing. If I was a fag I’d go get laid

[trainwreck]

Too bad for Dissapointed.

“Every sperm is sacred.
Every sperm is great.
If a sperm is wasted,
God gets quite irate.

Let the heathen spill theirs
On the dusty ground.
God shall make them pay for
Each sperm that can’t be found.

Let the Pagan spill theirs
O’er mountain, hill, and plain.
God shall strike them down for
Each sperm that’s spilt in vain.”

[Plutarck]

Dissapointed:

“I find the Supreme Court ruling problematic in their moral equivalency of gay sex with heterosexual sex. In gay sex there is no possibility of conception, whereas in heterosexual sex there is the possibility to bring life into the world. Why should they be treated equally?”

Actually, in heterosexual sex there is _not_ neccessarily even the _possibility_ of bringing life into the world. Heterosexual sex, by all connotations and definitions, includes couples who are sterile, willfully or not, through age, surgery, genetics, or disease; these people can never have children. Why, therefore, should sex amongst the old, or sex between those who cannot conceive due to illness, accident, or malice be treated equally?

[Phil]

I find the Supreme Court ruling problematic in their moral equivalency of gay sex with heterosexual sex. In gay sex there is no possibility of conception, whereas in heterosexual sex there is the possibility to bring life into the world.

You do realize that sodomy — which was the activity at issue here, oral and anal sex — committed between opposite sex partners is exactly as unlikely to result in conception of a child as it is when committed between same-sex partners, right?

I’ll go so far as to say that there is absolutely no chance that a child will ever be conceived via anal sex, and thus allowing heterosexuals to practice it legally while denying that right to homosexuals is absolutely a violation of equal protection laws. Bigotry can be the only explanation, and while individuals may be bigots, the 14th Amendment precludes the State from being a bigot.

For that matter, having had a vasectomy, no amount of sex that I have with my wife is going to produce a child, either. Imagine that.

[mark]

“I’ll go so far as to say that there is absolutely no chance that a child will ever be conceived via anal sex”
Where do you think lawyers come from?

[B.P. (also in Denver)]

So, disappointed, surely you feel that hetero individuals with sterility issues should not be allowed privacy in the bedroom due to the fact that they cannot “bring life into the world”. (Something tells me you’re just flamebaiting, anyway…)

[Anonymous]

“I’ll go so far as to say that there is absolutely no chance that a child will ever be conceived via anal sex”

I believe Disappointed is the exception to this rule.

[Thomas]

This isn’t a great victory for liberty. Laws prohibiting working 60 hours a week in a bakery (see Locher) will still be constitutional. Instead, it’s a great loss for democracy, as the Court decides that its moral views can overrule the rights of the majority when the text and history of the constitution are silent. Why a lover of liberty would celebrate the the undermining of our constitutional government, with its majoritarian institutions coupled with protections for individual rights, is beyond understanding.

[Plutarck]

Disappointed in Denver:

Oh, you missed one more thing which, now that I gave it a second thought, was even more glaring – these laws are against _sodomy_. Now, I admit it has been quite a number of years since I had anything like sexual education or anatomy class…but I’m relatively sure you can’t get pregnant by anal sex, or oral sex for that matter. One cannot reasonably thing one wrong because there is no possibility of pregnancy, and yet not think the other equally wrong. Add to those two both masturbation (individual, one to another, or mutual) and all sorts of other kinky stuff that, in all likelyhood, you wouldn’t be in favor of either.

So, why should all these be so considered “equal” to straight (har har) old-fashioned sexual intercourse?

[twistedmerkin]

I don’t believe our rights have to be enumerated by the constitution in order to be valid.

[Plutarck]

Damn, that makes, what, 4 people that jumped on the same thing – not counting me?

Drat, I’m slow today…

[Steven Crane]

Isn’t this a case of the libertarian state vs. the permissive state, as somebody referenced in a blog comment a few days ago? The SC didn’t create a “right” to homosexual sex. It wasn’t expressly forbidden by the Constitution in the first place, so they didn’t do any trampling by their decision. Also, I think it’s a cop-out to say “let the states decide”. If the constitution is the supreme law of the land, and the SC the highest court, its authority extends over the sstates. Nominally protecting freedom at the federal level while letting the states do all the restricting is an end-run.

[Anonymous]

http://www.claytoncramer.com/weblog/2003_06_22_archive.html#105663863742445236

[Anonymous]

from the link above:

“Remember: a right that is only implicit in the Ninth Amendment is a valid basis for striking down state laws that have been present since the beginning of American government (sodomy prohibition); a right that is explicitly stated in the Second Amendment is not a basis for striking down state gun control laws that are actually a pretty modern innovation. This is why I don’t respect liberals–they use their control of the courts to achieve their objectives, and care not in the least about the Constitution.”

[joe]

So, because you’re posting on a thread about an issue related to gay people – even though you are posting in favor of the antigay position – you feel the need to let us all know that you’re straight?

God, that’s pathetic.

[jim]

Disappointed is obviously SOOO gay! One must be DEEP in the closet to get that angry about other gays out in the open.

[Steven Crane]

Powers delegated to the states doesn’t entail all that some people think it does. I’m not a fan of an invasive government from Washington… and it’s no improvement if Washington butts out, but state capitals move in to replace it.

[Anonymous]

“So, because you’re posting on a thread about an issue related to gay people – even though you are posting in favor of the antigay position – you feel the need to let us all know that you’re straight? God, that’s pathetic.”

Yeah, kind of like if in a thread about Affirmative Action someone went on and on about how they once met a black person who pronounced words funny.

[Eric]

“I recently read the birthrate of the United States has reached record lows. This kind of behavior does NOT need to be encouraged.”

That statistic is quite misleading. You have to differentiate between birth rates, which measure the number of childbirths per 1,000 people, and fertility rates, which measure the number of children the average woman can be expected to have over her lifetime.

Fertility rates have risen considerably since the mid-1980s, and are at their highest levels since about 1970. Since a large percentage of the women who are currently of child-bearing age were born in the ’70s and early ’80s, when fertility rates were plummeting, birth rates are presently at a new low. But given the rebound in fertility rates that followed those years, this trend is likely to reverse somewhere in the second half of this decade, and continue its reversal during the next decade.

Whew, 46 posts and counting on the subject of gay sex. Anyone else think that some people here are a little obsessed?

[Croesus]

Thomas,

There are plenty of anti-majoritarian elements to the Constitution – the original design of Senate “election” for example, as well as the much vaunted electoral college. The Senate itself is perhaps the most anti-majoritarian institution in our government – why should Delaware or Vermont have as many Senators as the state of California or Texas? You are barking up the wrong tree.

[joe]

…or someone who anonymously posts personal attacks because they can’t hold their own in an argument.

[nice piece of as]

I bet I know why DiD is “disappointed” [whisper] He’s (she’s?) a virgin [/whisper]
So you’re saving it for marriage, huh? Well good luck, cuz you’re gonna need it.

[trainwreck]

I just can’t stay away from Scalia on this one.

Imagine him stating from the bench:

“The court has taken sides in the culture war,” Scalia said, adding that he has “nothing against homosexuals.”

I guess God is the only one with something against gays. Why then, did He in His infinite wisdom, create them?

[An Abomination]

All I can say is that God is the *real* supreme law of the land and that no court on earth can rule against Him.

[Anonymous]

fuck Scalia for defending the constitution, the bigot!

[Anonymous]

An Ab,

What are you talking about? God is obviously gay. He couldn’t even get it up to knock up Mary, had to have Gabriel do the dirty work for him. Might as well have used a turkeybaster. Add to that the fact that he’s always wearing that white dress, plus he and his homo son (it must be genetic) both have that girly hair. Right hand of God, my ass, Jesus is on his Daddy’s lap.

[Jack]

I wonder if “Disappointed in Denver” is actually Congressman Tom Tancredo, based on the bizarre anti-immigration slant to his post.

[Tommy_Grand]

D-in-D is yanking your collective chain I’m pretty sure.

[Brian]

Thomas,

“Majoritarian/democratic” and “liberty” do not necessarily go hand in hand. If anything, the majoritarian nature of our government has eroded personally liberty as much as any other factor.

Quick examples:

Most people in the US are still opposed to gay marriage. Following the majority opinion denys gays equal protection under the law.

Most people do not smoke. Draconian public smoking bans (Cali, NYC, etc.) infringe on the rights of business owners to determine what can take place in their establishments…even if the majority supports it.

The majority of the tax burden in this country is born by a small minority of the people with the largest incomes. And you wonder why _real_ tax reform never comes about?

Democracy=liberty…one of the greatest lies ever told.

[Anonymous]

I think an appropriate ending to this thread would be for us all to now walk away yanking our chains or that of anyone else in the room, safe in the knowledge that we can no longer be busted for it.

[uncle scott]

what this country needs is an ammendmant giving each adult the right to thier own body. then we would not care if someone else is doing something we would not do. freedom is a personal choice.

[Thomas]

Brian–I’m not suggesting that democracy = liberty at all. I do believe, however, that a system of government that supplies some specified individual rights and some majoritarian means of enacting majority preferences is preferable to the system the Supreme Court is creating for us now. Why should the Court undermine the good because it is not a libertarian utopia?

[busama tin noggin]

though, like justice thomas, i’m all for gay sex, i just don’t buy justice o’connor’s equal protection argument. see: the texas statute didn’t treat some well-defined, legally-cognizable group of individuals differently from others – allowing sodomy for straights but not gays. what was outlawed was a category of conduct – i.e., woman’s tongue/strap-on/finger(s)/fist(s(?)) in another woman’s anus/vagina, man’s penis in another man’s hand/anus/mouth, etc. straights as well as gays were prohibited from engaging in this conduct. it’s just that people with homosexual desires (gays, bi/curious, trannies?) were the only individuals with an inclination to break the law. if two straight men wanted to experiment on one another – even if just for the heck of it – they’d be exposed to the possibility of prosecution too. i think there’s plenty of support for this argument on the side of the “homosexual agenda”: sexual orientation is not binary black/white, there’s a spectrum of preferences, etc. in some sense, self-identifying as “gay” is always a “choice,” inasmuch as one is “choosing” to explicitly and publicly accept that their desires have driven them to reach this conclusion about their own orientations. see the movie “trembling before g-d” for more on this. if some evil genius were able to install some limb-manipulation machine in a couple of dudes, then by remote control force them against their will to do it with one another, i think, in the eyes of the state, they’d be hapless victims and he’d be convicted of violating the statute. as it stands now, what with the supreme court’s activist over-reaching, the state would have no recourse against such an evil genius.

i don’t know if texas briefed this argument at all, but i think it’s a winner.

[joe]

Busama,

We’re not banning practice of the Christian religion. We like Christians! We’re just banning religious practices that involve eating wafers of unleavened bread.

[arjay]

busama

The media has several times remarked that the Texas Statute banned Homosexual Sodomy only. In most other states all sodomy is banned.

[arjay]

I meant to say “in most other states with sodomy laws”

[busama tin noggin]

joe:

i hear what you’re saying, and i think i’m still right – on some technical level. i think the distinction has something to do with the difference between 14th amd equal protection & substantive due process – but that’s all an impenetrable mystery to me (even though i gots my j.d.).

anyways, i’m sure you see the disanalogy in your example, since the 1st amd would privilege physical manifestations of religious practices over physical manifestations of sexual desire. regardless of that, what if the christians’ religious practice was, instead of eating bread wafers that transsubstantiated into the flesh of christ, baby flesh which served the same purpose (fresh baby flesh, to me at least, seems a more plausible medium for the holy spirit than some cheap wafer, eh?). in that case, texas would have a pretty good reason to prohibit that particular practice, no? i think the debate here is properly whether there’s a pretty good reason to prohibit male dicks in male asses (the answer to which of course is no), not whether the government is treating the gays the same as the straights. my point is that sexual orientation is not a legally cognizable category, just as i would contend w/ race.

[Tommy_Grand]

Busama,

You will still think you are right even when you are not. Women could legally suck dicks. Men could not legally suck dicks. EP violation.

Ask your old con law professor.

[Anonymous]

arjay:

yeah, o’connor would strike down the texas statute and those like it, which discriminate btwn gay & straight sodomy, on equal protection grounds, but she would uphold the others which say no sodomy for anybody. i say her rationale is wack. the majority couldn’t find a good way to say there’s no good reason for the government to prohibit same-sex genitalia friction, short of making up this broad sexual privacy right, so their opinion affects those other no-sodomy states as well – going further than necessary & denigrating states’ rights. scalia’s right that this opens flood gates – not necessarily a bad thing. but i think i agree w/ thomas most.

tommy: ok, you’re probably right – you’re the expert in this field … but why can’t the state distinguish btwn male & female fellators? sex discrimination gets strict scrutiny?

[Tommy_Grand]

“but why can’t the state distinguish btwn male & female fellators? sex discrimination gets strict scrutiny?”

Not all scrutiny is strict. The state needs a good reason to discriminate on the basis of gender. And yes, as a connoisseur of the well-performed “French massage,” I consider myself an expert in this field.

[Layton Zach]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://www.TRY-PENIS-PILLS.NET

DATE: 12/10/2003 09:21:42
That which does not kill us makes us stranger.

[Rubin Beth]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://penis-size.nonstopsex.org
DATE: 12/20/2003 11:50:33
To go to war with untrained people is tantamount to abandoning them.

[Sam]

im new to the room and im not really sure on an issue. There has been few sex-ed classes here and so i wanted to ask others. Do you think there is any possible way that you can get pregnant through anal sex. PLEASE reply. – Sam