Great News

Woo Hoo! The Texas sodomy law has been struck down by the Supreme Court.

[sarcasm] I think, in celebration, I am going to engage in a wild orgy of sodomy. I will sodomize at the office, at the grocery store,- hell, I will sodomize on the ride home to pick up my BBQ smoker today. No one can stop me now- I am going to engage in sodomy 24/7. [/sarcasm]

At least, from the reaction of those in favor of keeping sodomy laws, that is what you would expect everyone to do- I know I was just one step away from having gay anal sex when I found out it was illegal- that stopped me right there. My point, of course, is that it is none of the government’s damn business what my homosexual friends are doing in the bedroom. I see no reason why their sex lives should be under scrutiny (or mine, for that matter). A good day for common sense and privacy, if you ask me.






24 replies
  1. 1

    Dick Cheney’s daughter can breathe easy, at least.

  2. 2

    Well said, John. The government really HAS no damned business in people’s bedrooms regulating their consensual acts (where no one gets killed, or at least hurt very badly!) Of course, this rationale could– AND SHOULD– be extended to drug laws– but that’s another subject altogether.

    Now please explain to me the rationale of the three justices who disented?

  3. 3
    JPS says:

    I agree, John, well said. But if I may:

    Talking Dog, I think the rationale of the minority (certainly of Thomas, who favors repeal) is that these laws may be bad and dumb, but they aren’t unconstitutional and it’s the legislators’ job to repeal them.

  4. 4
    M. Scott Eiland says:

    “Now please explain to me the rationale of the three justices who disented?”

    Clarence Thomas–in a conscious echo of Justice Potter Stewart’s dissent in Griswold v. Connecticut–said that he believed the anti-sodomy law was uncommonly silly, and that if he were a Texas legislator he’d vote to repeal it, but that silliness doesn’t make a law unconstitutional.

    Naturally, that distinction will be lost on the usual suspects who will be whining about what an idiot Thomas is, and mouthing “Uncle Tom” and “Oreo” around receptive audiences.

    For the record, I think the court reached the right result here.

  5. 5
    M. Scott Eiland says:

    Someone might want to give Little Dick Gephardt a call and tell him that he doesn’t have to hold a hysterical press conference demanding that GWB refrain from obliterating this decision with an executive order.

  6. 6
    Steve Malynn says:

    Private sex is now constitutionally protected. New privacy right. Slippery Slope meet polygamy/NAMBLA/prostitution. Which do you think is next. Lets all just move to Nevada and be done with it.

  7. 7
    HH says:

    The law should be struck down but the more I ponder it, the less I’m sure SCOTUS should have been the one to do it.

  8. 8
    David Perron says:

    NAMBLA and private, consensual sex have nothing whatever to do with each other, Steve. Consensual sex requires both partners be of majority age.

  9. 9
    Steve Malynn says:

    So Dave you concede that polygamy and prostitution are consentual sex and are now a constitutional right. (Re: NAMBLA, I know, hyperbole, of course the age of consent varies by state, maybe we need a SCOTUS ruling as to what is properly the age of consent.)

    HH, I agree with Justice Thomas, just because a law is silly does not mean it violates the constitution.

    The bottom line, any case that relies on Griswold v. Conn. is likely a bald ass lie.

    Check out http://claytoncramer.com/weblog/blogger.html for an appropriate skewering of the opinion, and Volokh for the next step down the slope, including incest (consentual, of course).

  10. 10

    I’m not in the least in favor of keeping Sodomy Laws.

    I AM, however, very much opposed to the SCOTUS usurping State powers.

    Not that that kind of Unconstitutional behavior from the Supreme Whores surprises me anymore.

    It’s all they do these days, the ignorant sluts.

    Score another one for the fucks that would rather see the Constitution shredded right away.

  11. 11

    Oh… But since consensual sex is now a Constitutionally Protected Right, I guess the entire State of Arkansas don’t need to worry about going to jail for the structure of their alternative family trees.

  12. 12
    Steve Malynn says:

    Dean, are you going to revisit your opinion of Santorum?

    Volokh:

    I do, however, want to make one point — by no means the most important point, just one that I think some might miss. In April, Sen. Rick Santorum famously said:
    And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery.
    Many faulted him for his comments, and I certainly don’t endorse all that he said. But on this sentence, I think he’s been proven close to right.

  13. 13
    David Perron says:

    Actually, since the issue of sex isn’t even given mention in the Constitution, it’s not a “Constitutional Right”. But if you go along the lines of that which is not expressly permitted is forbidden, many other things will come up for review by the supremes.

    That said, the division of regulation between state and federal governments needs a little roughing out. I’m talking completely out of my ass on this one, being near-totally stupid in the area of law. Just to caveat my comments, yanno.

    For the record, I agree that SCOTUS shouldn’t be trumping state law, except where Federal Law guarantees rights that a given state law might attempt to take back.

  14. 14
    Steve Malynn says:

    David, the unenumerated rights (9th Amendment), were those found at common law (conservative view, liberal view is that the unenumerated rights are those yet to be discovered by the court). At both the founding, and at the enactment of the 14th Amendment, sodomy was universally illegal. By 1986 that was down to about 1/2 of the states (26). By 2003 down to about 1/4 of the states (13). The reality is the Court got tired of the slow 1/4 and decided policy, not constitution.

  15. 15

    JPS– the anti-sodomy laws are not merely SILLY– they are UNCONSTITUTIONAL. Striking down unconstitutional laws is VERY MUCH the justices job.

    The fact is, if the laws were SILLY, Texas could have banned all forms of interpersonal (or hell, intrapersonal) contact that it deemed improper between ANY two people; Texas chose to limit its law to same sex couples.

    Steve– AS to Santorum’s IDIOTIC STATEMENT THAT MAKES GEPHARDT LOOK DOWNRIGHT BRILLIANT, no, the Supreme Court’s rather sensible upholding of LIBERTY here did NOT permit incest (which often involves an always not consenting minor child), or bigamy/polygamy (both of which involve a contract between two people AND THE STATE; one of the state’s conditions being “one at a time), and adultery, though violative of the Ten Commandments, is not itself a crime (although lying about it under oath might be). In short, Santorum’s statement was still stupid– stupid then, stupid now, and stupid tomorrow.

  16. 16
    JPS says:

    Talking Dog,

    [Think you’ve mixed my wording up with M. Scott Eiland’s; we made very similar points around the same time.]

    How are these laws unconstitutional?

    I’m not asking how they’re objectionable or pernicious, I agree with John and you on that. But where in the U.S. constitution is a state forbidden to pass a law like this?

  17. 17

    14th amendment, allegedly incorporating the 5th amendment’s equal protection clause.

    The even more controversial reading of the 5th/14th would extend to the “penumbral privacy rights” leading to Griswold v. Ct. (1963) and Roe v. Wade (1973)– a whole other can o’ worms the Court didn’t get to.

    This decision (thankfully) didn’t have to go that more controversial route, because of the obvious equal protection problems (why, e.g., is anal sex a crime between a man and a woman, but NOT between two men? no good answer? thought so!)

  18. 18
    JPS says:

    John, sorry if my exchange with the talking dog has gone one round too many, but you’ve made a fine point and started an interesting discussion.

    Talking Dog writes: “no good answer? thought so!” Well, sort of. I think the equal protection argument is a good one.

    I’m no con law scholar, but as I read Justice Kennedy’s opinion, he specifically declines to strike the law down based on equal protection (unlike O’Connor in her concurrence), because then some might claim that the law would be valid if extended to cover heterosexual sodomy, and he doesn’t want to leave them that option. Why? Because that violates our sense of liberty.

    So he argues based on due process, which when applied to the substance, rather than process, of a law, is a blank check for justices to throw out laws because they don’t like them. (Seems to me this is exactly the can o’ worms you’ve said the Court didn’t open. The argument is Due Process; the link to it amounts to penumbral privacy rights.)

    That’s what bothers me here. They’ve declared that this law sucks (which it does), therefore it violates due process, therefore it’s unconstitutional. That’s dangerous, even if we’re glad of the outcome.

  19. 19

    Wonderful… It always comes down to that, doesn’t it? “Feeeeeelings”… I “feeeeel” that this is a bad law and therefore it’s perfectly OK to strike it down by whatever means necessary, even if it means violating our separation of powers by legislating from the bench…

    The Supremes’ job isn’t to “emote”, it’s to reach a Constitutional decision.

    Sadly, “emoting” is all they seem to be good at these days, the useless fuckwits…

    Am I glad that that damn stupid law is struck down? Of course I am. But to me, being the irritatingly rational person that I am, that does NOT justify making a mockery of the Constitution in the process.

    Now, cut the crap about how wonderful it is that this Idiotarian law is no more, because I do believe that most of us already agree on that and riddle me this:

    Just WHERE in the Constitution is Sodomy defined explicitly as a Protected Right?

    No, that it’s not mentioned does NOT mean that it’s automatically forbidden, it just means that it’s up to the State legislators to decide whether it should be or not.

  20. 20
    CK says:

    First of all it is silly to say that sodomy laws are wrong and bad and that they unfairly take away the liberties of others. One can similarly say that having laws against pedophilia and rape are bad, because they take away the liberties of the people who commit them. As soon as one distinguishes between sodomy and pediophelia/rape by talking about consenting adults, one is appealing to a moral authority, namely, one that says that consent and maturity is important to prevent the infringement of someones rights. We are appealing to a sense of morality that says that women and children arent objects or chattels, they are human beings who should be given rights. This sense of morality is what is the public law of the country. In other countries, at other times, different moralities were enshrined in the public law, ones that allowed rape to be carried out because the sense of public morality was ok with it, because according to their sense of morality, women were merely chattels. Thus, really the issue is whether 1. public morality prohibits homosexuality (I think it doesnt) and 2. whether the SC had the power to change laws to conform to this morality

    1. In theory public morality should not change in the USA because of its Constitution. However, as public morality changes, so does interpretations of the constitution. The Court is formed of human beings whose own morals are influenced by public morality. Their interpretation of the constitution is based on these morals. Thus, in 1896 public morality supporting black rights wasnt strong enough to influence the morals of the court, and force it to read the Cosntitution in a certain way. In 1964, it was. Similarly, today-in 1986, public morality was so firmly set against homosexuality, that even the morals of the majority of the Court members forced a certain interpretation in a certain way. Today, the opposite is true. Ultimately, it isnt a perfect system, but it seems to have worked well so far. One must remember that one of the aims of the founders was the prevent tyranny of the majority (Madison, Federalist 10)-that is the reason the Sup. Ct is there-to balance out the Legislatures majority. One can only hope that the personal morals of the Court conforms enough with public morality so that a tyranny of the minority is also prevented. The personal morals of the Court cannot allow them to change the Constitution. However, the possibility of impeachment of the Justices is a safeguard against such tyranny.

    2. based on this, we must decide if the Court had strong enough support for its interpretation of the Constitution, or whether, it was just based on its personal morals.

    That’s what bothers me here. They’ve declared that this law sucks (which it does), therefore it violates due process, therefore it’s unconstitutional.
    -JPS

    Basically, when every one speaks of the 14th amendment and due process, they eclipse the real issue in the opinion-namely that of liberty as supported by the 14th. All processes have an aim. Due process has the aim of depriving someone of life, liberty in a way that does not deny them these rights in a way that conflicts with the guarantee provided by the Bill of Rights. Due process does not have the aim of preventing laws from sucking. It has the aim of ensuring that life and liberty of citizens is protected, and not taken with a pinch of salt by the state. This is what Kennedy emphasized-the fact that the liberties of gays were not being protected. And he did so in a manner that was perfectly in accord with readings of the Cosntitution before him-Griswold and Roe being examples, where the Court believed that certain liberties including privacy had to be protected.

    Finally:
    that it’s not mentioned does NOT mean that it’s automatically forbidden, it just means that it’s up to the State legislators to decide whether it should be or not.
    -Emperor Misha
    The Court never said that it is not mentioned in the Constitution and therefore not allowed-it says that because of the Constitution says it is not allowed. The States can and do make certain laws. If a challenge is brought to that law, the Court will only accept it if it sees a potential conflict with the Constitution. In this case there was an actual conflict-personal liberties vs. state police powers.
    In Plessy v. Ferguson-that oh so famous case of the SC promoting separate but equal we also have an argument supporting state police powers as defined by the legislators. The problem of course, as Justice Harlan wrote in his dissent in that case is-where are these powers restricted-if tomorrow, the state decides to force blacks to paint their house one colour, or for that matter, force Jews to wear the star of david (ring bells anyone?) then can we not stop them? Only if, again we decide that personal liberties trump state and legislative powers. The Court has the power to stop legislators of both states and the U.S. Congress from violating the Constitution-whatever the majority of the legislature says (unless a super-majoirty changes the Cosntitutioon). That is its job-to be clear in the areas where the Constitution is ambiguous.

    As for that little prick-Santorum. At one time it was permissible to have religious morality included in public morality-when the Pilgrims were around. However, the Constituion specifically says that religious morality cannot be a basis on which me make our legal judgments (as opposed to our moral ones). Therefore, legally, you cannot just say incest, homosexuality and bigamy are immoral and therefore should be stopped, because this judgement of morality is not based on the public morality as enshrined in the Constitution, but in a private, personal, religious morality. What you can say is underage incest is bad because it hurts the rights of a child, because it physically and mentally scars him/her. Similarly, a marriage is a contract. Cotracts are protected by the Constitution. Bigamy breaks a provision of that contract. Therefore, bigamy is wrong. One can also say incest leads to the violation of a fully born (I use that to circumvent abortion) childs right to health and happiness, since a fully born child produced by incest will probably not be healthy or happy. However, though I think it is morally repugnant, I cannot see how it would be right for me or Santorum to legally challenge consensual adult incest without the chance of conception through a vasectomy etc. The rights of us all are protected by the Constitution. They must be respected.

  21. 21
    CK says:

    First of all it is silly to say that sodomy laws are wrong and bad and that they unfairly take away the liberties of others. One can similarly say that having laws against pedophilia and rape are bad, because they take away the liberties of the people who commit them. As soon as one distinguishes between sodomy and pediophelia/rape by talking about consenting adults, one is appealing to a moral authority, namely, one that says that consent and maturity is important to prevent the infringement of someones rights. We are appealing to a sense of morality that says that women and children arent objects or chattels, they are human beings who should be given rights. This sense of morality is what is the public law of the country. In other countries, at other times, different moralities were enshrined in the public law, ones that allowed rape to be carried out because the sense of public morality was ok with it, because according to their sense of morality, women were merely chattels. Thus, really the issue is whether 1. public morality prohibits homosexuality (I think it doesnt) and 2. whether the SC had the power to change laws to conform to this morality

    1. In theory public morality should not change in the USA because of its Constitution. However, as public morality changes, so does interpretations of the constitution. The Court is formed of human beings whose own morals are influenced by public morality. Their interpretation of the constitution is based on these morals. Thus, in 1896 public morality supporting black rights wasnt strong enough to influence the morals of the court, and force it to read the Cosntitution in a certain way. In 1964, it was. Similarly, today-in 1986, public morality was so firmly set against homosexuality, that even the morals of the majority of the Court members forced a certain interpretation in a certain way. Today, the opposite is true. Ultimately, it isnt a perfect system, but it seems to have worked well so far. One must remember that one of the aims of the founders was the prevent tyranny of the majority (Madison, Federalist 10)-that is the reason the Sup. Ct is there-to balance out the Legislatures majority. One can only hope that the personal morals of the Court conforms enough with public morality so that a tyranny of the minority is also prevented. The personal morals of the Court cannot allow them to change the Constitution. However, the possibility of impeachment of the Justices is a safeguard against such tyranny.

    2. based on this, we must decide if the Court had strong enough support for its interpretation of the Constitution, or whether, it was just based on its personal morals.

    That’s what bothers me here. They’ve declared that this law sucks (which it does), therefore it violates due process, therefore it’s unconstitutional.
    -JPS

    Basically, when every one speaks of the 14th amendment and due process, they eclipse the real issue in the opinion-namely that of liberty as supported by the 14th. All processes have an aim. Due process has the aim of depriving someone of life, liberty in a way that does not deny them these rights in a way that conflicts with the guarantee provided by the Bill of Rights. Due process does not have the aim of preventing laws from sucking. It has the aim of ensuring that life and liberty of citizens is protected, and not taken with a pinch of salt by the state. This is what Kennedy emphasized-the fact that the liberties of gays were not being protected. And he did so in a manner that was perfectly in accord with readings of the Cosntitution before him-Griswold and Roe being examples, where the Court believed that certain liberties including privacy had to be protected.

    Finally:
    that it’s not mentioned does NOT mean that it’s automatically forbidden, it just means that it’s up to the State legislators to decide whether it should be or not.
    -Emperor Misha
    The Court never said that it is not mentioned in the Constitution and therefore not allowed-it says that because of the Constitution says it is not allowed. The States can and do make certain laws. If a challenge is brought to that law, the Court will only accept it if it sees a potential conflict with the Constitution. In this case there was an actual conflict-personal liberties vs. state police powers.
    In Plessy v. Ferguson-that oh so famous case of the SC promoting separate but equal we also have an argument supporting state police powers as defined by the legislators. The problem of course, as Justice Harlan wrote in his dissent in that case is-where are these powers restricted-if tomorrow, the state decides to force blacks to paint their house one colour, or for that matter, force Jews to wear the star of david (ring bells anyone?) then can we not stop them? Only if, again we decide that personal liberties trump state and legislative powers. The Court has the power to stop legislators of both states and the U.S. Congress from violating the Constitution-whatever the majority of the legislature says (unless a super-majoirty changes the Cosntitutioon). That is its job-to be clear in the areas where the Constitution is ambiguous.

    As for that little prick-Santorum. At one time it was permissible to have religious morality included in public morality-when the Pilgrims were around. However, the Constituion specifically says that religious morality cannot be a basis on which me make our legal judgments (as opposed to our moral ones). Therefore, legally, you cannot just say incest, homosexuality and bigamy are immoral and therefore should be stopped, because this judgement of morality is not based on the public morality as enshrined in the Constitution, but in a private, personal, religious morality. What you can say is underage incest is bad because it hurts the rights of a child, because it physically and mentally scars him/her. Similarly, a marriage is a contract. Cotracts are protected by the Constitution. Bigamy breaks a provision of that contract. Therefore, bigamy is wrong. One can also say incest leads to the violation of a fully born (I use that to circumvent abortion) childs right to health and happiness, since a fully born child produced by incest will probably not be healthy or happy. However, though I think it is morally repugnant, I cannot see how it would be right for me or Santorum to legally challenge consensual adult incest without the chance of conception through a vasectomy etc. The rights of us all are protected by the Constitution. They must be respected.

  22. 22
    Chris Van Dis says:

    I think that this particular law should have been repealed soley on the 14th Amendments Equal protection Clause. I think the three holdouts were nervous about the preceding sentence though
    -No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,

    So what does that say? Considering the inability of so many to correctly interpret the first and second Amendments, not to mention “and the general welfare of the People” part of lawmaking in both the Preamble and section 8, I wonder what sort of mischief will arise from it. Does this mean that we must sink to the lowest state’s level, or does that mean that if we get the right SC justices we get anarchy? Or does that only refer to rights delineated in the Bill of Rights?

  23. 23
    CK says:

    (to Chris)
    probably the bill of rights, since the determinant of priveleges of the citizens should not be a man or even a religion, but the Constitution. If it were overturned solely on Equal Protection, then in the 8 other states with equal protection vs. sodomy, the state would still have the right to go into the bedroom. and i dont think that it is a strange reading of the constitution to agree that based on the 14th a citizen has the liberty to choose his behaviour in the bedroom (as long as these do not infringe on the rights of others) just as he has the right to choose a job that does not infringe on the rights of others

  24. 24

    Judicial Activism

    Today the U.S. Supreme Court diminished states rights even further with its 6-3 vote in favor of Lawrence, in Lawrence v. Texas. I believe, as most people that the sodomy law that Texas still had on its books was a…

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  1. Judicial Activism

    Today the U.S. Supreme Court diminished states rights even further with its 6-3 vote in favor of Lawrence, in Lawrence v. Texas. I believe, as most people that the sodomy law that Texas still had on its books was a…

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