The Supreme Court made today a good day
 

I've been working too much and been too grumpy lately, but this has cheered me up and made my day.

http://www.cnn.com/2003/LAW/06/26/sc...omy/index.html

I agree. The government should not have the right to control what consenting adults do in the privacy of their home. Period.

To me, the issue of whether sodomy is "right" or "wrong" does not even enter the debate.

I have yet to read the case, but I am interested when I get a chance. I assume, John, that Scalia was none too happy?

Agreed. Makes up for the travesty that was Bowers. Between this and the UofM Law affirmative action case, it hasn't been a bad week for US jurisprudence.

I guess the 10th Amendment is no longer valid...

Dola....well actually I'm not sure it ever was...

Of course. The usual three, Scalia, Thomas, and Rehnquist all dissented. Scalia made some pithy comments about the Court taking sides in a cultural agenda.

I haven't seen too much except for the parts in the CNN article (that he actually read his decision from the bench and criticized the Court for taking sides in the "culture wars"). I think Rehnquist is probably the most upset. He dissented from a University of Missouri decision in the 70s that allowed a gay student organization to exist. He compared allowing a gay club to allowing an organization of rapists. He seems to be the by far the most homophobic of the Justices. I had a chance to meet him a few years ago and he didn't express any regret in what he wrote in that decision.

Ummm....the Michigan case scares me. Did anyone HEAR a Supreme Court Justice of the United States say that the ruling was based on "the good of society?" I guess that whole thing of making rulings based on the United States Constitution is a thing of the past... :(

Never is probably not true SkyDog.

However, lately.....

The 10th says that the states have the powers that are not given to the fed.

The 14th says that States cannot violate someone's due process rights.

The 10th amendment is not applicable here. This is not an area where the fed was trying to legislate in an area that was reserved to the states. It is simply a case of the state passing a law that conflicted with the federal constitution. When there is a conflict, the constitution wins by virture of it being the "supreme law of the land"--a stipulation to which every state agreed when it ratified the U.S. constitution.

For a quick example. A state could not pass a law that said that no woman could inheret property. That law would conflict with the 14th amendment. Even though local issues of property decent are certainly areas in which states have control over acts of congress, the laws that the state passes cannot conflict with constitutional provisions.

It's better than Monday's U of Michigan Law School ruling.

SD, the decision doesn't affect interpretations of the 10th Amendment. If there is a core liberty or constitutional right at issue, it never gets to federalism questions. You may believe that there is no right to privacy in the Constitution, but once you decide there is, federalism isn't an issue. Otherwise, states would be able to obliterate free speech, deny due process, and inflict cruel and unusual punishment (notice that the Bill of Rights doesn't include references to state actions). Once the 14th Amendment was passed, the Court "incorporated" almost all the rights in the first 9 Amendments to apply to the states (they didn't actually apply until that point). Nowadays, almost every constitutional protection applies to actions by the states, with the right to a jury being a notable exception.

This doesn't make up for the 2 revolting US Supreme Court decisions monday.

One, the Univ of Michigan one, upholding what is in my mind reverse discrimination, 'point system' or not.

Two, and far worse, the lawsuit brought about the the Librarians Association, upholding enforced censorship of library internet access points.

Of course not. That's a silly statement to make.

Unfortunately, you're spot on there...


For the record, I don't care about that particular law itself. However, it frightens me that the Federal Government is sticking its nose in more and more where it doesn't belong.

Welcome to the 21st century, Texas.

Skydog, why is it that any government, state or federal, should be allowed to dictate what two consenting adults do in the privacy of their own homes? I'm glad the government stepped in an struck down the law. In my mind, it's no ones business.

If the State sticks it's nose where it doesn't belong, isn't it a good thing that the government can call them on it?

But this is not the Federal Government sticking its nose in where it does not belong. The Constitution is the law of the states as much as it is the law of the feds (which, in part, is why states have to ratify amendments to the constitution before they can become effective). The Supreme Court of the United States interperted a provision of the Constitution to conflict with a state law. According to the Constitution, when a state law or an act of the US Congress conflicts with the Constitution, the state law/act of congress "loses."

I think the distinction here may be that I am thinking of the Constitution as the law of the land, and you are thinking of it as federal law.

Here's another example to illustrate my point.

In a recent case (Lopez), the U.S. Congress had passed a law saying that you could not possess a gun within X feet of a school. Mr. Lopez was busted under this law. The U.S. Supreme Court found that there was no basis in the Constitution for Congress to pass this law. Accordingly, the power to control this action was reserved to the states under the 10th Amendment. Congress had no right to pass the law. The Constitution says when Congress has no right to pass a law, the law must die. So it died. (rightly, I think).

If, however, in that case, the state has passed a law saying that "no person shall possess a gun within X feet of a school," then that law would not conflict with anything and would be constitutional. That's the 10th Amendment in action.

Finally, if either the state or congress passed a law saying that "no black person shall own a gun," then the law would be struck down as violating the Constitution. Whether the law comes from the state or the fed., if it conflicts with the constitution, it is unconstitutional.

I can understand where you are coming from, SkyDog. From the perspective of Texas, Washington D.C. is telling them how to run their sherrif's office. Whether the decree comes from the Supreme Court, Congress, or the President may be a cute issue of interest to the lawyers, but from the state's perspective, it is all the same thing.

However, and I am one of the lawyers who enjoys this kind of hair splitting, I think that the distinctions that John and I have laid out are important in a larger sense--even if the immediate effect of them cannot be felt.

It sounds here like you do not believe that you think the federal government should be preventing the states from denying us constitutional rights, which is what this case was decided on.

You really think states should be able to deny us rights guaranteed in the U.S. constitution?

Dola--I don't want to understate my case. I would actually argue that those distinctions--in the long run--are much more important than the results in any individual case. Without them, we would not have a government by, of, and for the people.

That sounds great, but what happens when the Imperial Federal Government sticks its nose in again where it doesn't belong and changes a law that you DO happen to agree with? My concern isn't with that particular law, but with the power that the Feds are haphazardly wielding.

Uh Oh. Sounds like succession grumblings out of Georia. :D

If all the US government did everyday was protect me from the tyranny of state governments attempting to restrict/invade my privacy, I would actually enjoy paying my taxes!

It is the job of the government to step in when your rights are being violated. They have determined that Texas telling you what sexual acts you are allowed to perform with other consenting adults is a violation of your freedom. This is a fantastic decision for everyone in this country. Hopefully it will be a sign that, in the future, the citizen will win the battles over privacy and individual rights, instead of the government always winning.

I don't know how anyone could be upset about this ruling, unless you think you really have a right to tell other adults what they are allowed to do consensually in the privacy of their own homes. If you think you have the right to do that, I really feel sorry for you.

Unfortunately, I tainted my point with my opinion.

If a law is deemed unconstitutional it should be abolished. The laws of the state should be checked by the federal government. Checks and balances are important. That's how I see this situation. The state of Texas made a law that was deemed unconstitutional by the highest court in the land. I don't see the decision as "haphazard". I would feel the same if it was a law that I didn't agree with.

Well of course not. My concern is that a state made a decision of what was illegal behavior, and the feds overturned it.

LOL. That's actually a good point...

They overturned it because it interfered with Constitutional rights though. You can't have it both ways.

Tekneek, who's going to protect you from all enemies, foreign or domestic? :D

It's easy to see how people could be upset with this ruling, however. Homosexuality is NOT a popular lifestyle "choice" in this country, and that is what this law was really about.

SD, you are really confusing me here. It sounds like you are letting your ideology conflate different issues into the same response.

There is a difference between the federal government regulating intra-state (not interstate) commerece and enforcing constitutional rights protections. This Court has been extremely protective of states rights (moreso than any other in history) and since the Lopez decision, it has mostly continued to strike down federal actions beyond the scope of federal authority.

However, when the states adopt criminal laws that violate constitutional boundaries, then the Court strikes the down. If a state decided to execute criminals without an appeal, for example, it would be struck down as a violation of due process. If a state decided to make newspapers illegal, it would obviously be struck down as violating the First Amendment. Surely, you don't oppose action by the Court in those cases. This is no different - you clearly don't believe in a right to privacy, but don't act like this is a federal powers issue - the government has found a right to privacy in a long line of cases and this decision is a simple statement that states can't trample on that right (just like they can't trample on other constitutional rights).

You cannot legislate morality. Once you make a moral issue a political one, like in legalizing the killing of unborn children, then it ceases to be an issue since a government should not impede upon the right to privacy. However, it is being extremely hypocritcal because it makes laws all of the time telling what a private landowner or private business what it specifically can and cannot do and will enforce those even without due process. What gives them the right to do this?

LOL. I've said several times that I believe a person should have the right to do whatever they want, as long as by force or fraud it doesn't deprive another of their right to life, liberty or property. I don't trust the Imperial Federal Government though, and anything resembling expansion of its power troubles me.

"I agree. The government should not have the right to control what consenting adults do in the privacy of their home. Period."

This is an argument I cannot buy. Just because two consenting adults agree to do something in the privacy of their home does not make that activity immune from government intervention. There are a lot of consenting adults manufacturing drugs in the privacy of their own home that they then sell to people on the street. Does it mean the government should take its hands off this activity? I don't see too many people arguing that people should be able to make heroin in the privacy of their own homes.

The real question appears to be about the more far-reaching implications of the activity occurring in the privacy of one's home. Rather than confine the discussion to the privacy issue, we ought to be asking if what occurs in this privacy has consequences for society at large. That would seem to be the issue dividing people. Some would say homosexuality has serious consequences for society while others don't think it matters at all.

They sure do try, Bucc. Morality is volatile, and gets your name out there. It can turn you into a champion, too, and carry you all the way to Washington.

Dola---

To summarize my position. I didn't agree that the law should have been there, but I'm far more concerned that the Federal Government saw fit to jump in. We did it right in Georgia. The Feds upheld the law, then the GEORGIA Supreme court struck down the sodomy law a few years later.

I personally disagree sachmo. It would be for those that makes up morality as they see fit.

But sexual acts, as long as they are consentual and done in private (i.e. no one can see or hear them) cannot be harmful to anyone except the people performing them. Unless I'm missing something?

You really need to clarify here. Do you or do you not think that the supreme court should overturn state laws that violate rights guaranteed to citizens in the Constitution?

AjaxAB--

Yes--you are right. There are some things that one does in the privacy of ones home in which the government has a say. I can take your example and make drugs "to sell to people on the street." Or I can shoot a bullet that goes through my window and hits another person. I'm sure that we can stretch our minds and think of lots of things that one can do in which all of the actors are located inside of a privately owned dewlling and in which all of the actors have expressed consent to do the activity, but which nonetheless demand government intervention.

I do not, however, believe that it is difficult to draw a distinction between those "mind exercise" activities and private sexual conduct.

I'll amend my statement to say that the goverment should not have the right to control the sexual conduct of consenting adults conducted in private.

Like taking illegal drugs?

Almost all criminal legislation is premised on morality. Murder, stealing, and kidnapping are all illegal under a particular conception of morality. The 8th Amendment bars punishment that is cruel and unusual (which pretty much means "immoral"). The criminal code is mostly filled with society's collective opinion on certain moral issues.

As for the hyprocrisy, I think you are conflating "privacy" with "private ownership." Admittedly, "privacy" is a slippery term, but tends to include things like the rights surrounding the decision to procreate, the rights of persons to not have certain parts of their body invaded, etc. The usually stem around family or very personal issues. Private ownership restrictions, on the other hand, are inevitable. Otherwise, you have no roads, massive pollution, and constant nuisance (noise, light, etc.). Some restrictions go to far, but not for "privacy" reasons.

If a state Supreme Court violates the U.S. Constitution, then sure, but look very carefully at the CNN story...

Heh. You opened up a can o' worms there now Buc. ;)

So, if a state legislature enacts a law which violates the U.S. constitution, which is what happened here, the U.S. Supreme Court should stay out of it?

Technically, a state Supreme Court decision almost NEVER violates the Constitution - I think you mean the law they uphold violates the Constitution. If you arguing that a state Supreme Court always gets first say on the issue, that is pretty much the status quo. With a few extreme exceptions, the states go through their levels of appeals and once the state SC rules, the losing party can apply for a writ to have their case heard by the SC. Very few of these cases are actually heard, but the SC determines if the law in question is unconstitutional, not whether the actions of the state SC are unconstitutional.

dola, I should say that some states don't actually have the SC rule - in states where the state SC has discretionary jurisdiction, they may refuse to hear the case. Still, the case can't go to the federal SC (except in very instances) until the state SC decides not to hear the case.

I do not have a problem with people making drugs in their own homes. In fact, I do not have a problem with them selling the drugs to people who are at least 18 years of age, either. I definitely do not have a problem with consenting adults producing any kind of drug in their home if it never leaves that property (keep in mind here, for the household to be consenting adults there cannot be any children there, or it is no longer just consenting adults). So, yeah, I would be in support of the government backing off of that. Now you've seen at least one person take this consistent position.

Homosexuality has serious consequences for society? Please share some of these in this thread. I am not aware of any such impending doom being brought on by homosexuality. If anything, religion and its fundamentalism is what is more likely to have severe consequences for all of civilized society.

What about if a state legislature passes a law that infringes constitutional rights? Do you believe that the United States Supreme Court should strike that law down?

Ok. Yes on the technicality there. Yes, the law they uphold.

Did this case go to the Texas Supreme Court though? It never says so in the article. It just says an appeals court upheld it. Is it just assumed that every case goes through a State supreme court?

See my "dola" post. I believe the Texas SC declined to hear the case and so it was appealed to the SC (the next highest level).

I can't speak for the state of Georgia, but frankly, having met many of the mongoloids, er, men and women in the Arizona State Legislature in the past, I trust my state to do the right thing with regards to constitutional protections even less than the Federal government. The legislature in this state is so bad that even the Arizona Republic, a moderate-right wing newspaper by most standards, refers to the Republican dominated legislature here as the "90 Dwarves."

All I can say is Thank God for the Supreme Court. The constitution and bill of rights worked the way they were supposed to here. This case was a clear invasion of privacy in what was, after all, a matter between consenting adults.

Pretty much. The Supreme Court wants to give states the chance to interpert their own laws and how they relate to the federal constitution.

There is also the chance that a state may strike down a law for a reason unrelated to the federal constitution (say if it violates the state constitution), which would keep the US SC from having to hear the case.

So, both to promote judicial economy and to show respect to state judicial systems, almost all cases must go through the final level of state appeal (whatever it may be) before the US SC will even consider getting involved.

Sure, if you cut of the part where I said "But sexual acts", you can make that argument. That was strange, Bucc, unless I'm missing your point.

For the record, I don't equate sexual acts with taking illegal drugs, nor do I believe that everything done in the privacy of a home should be out of bounds for the law. Nowhere did I attempt to make that statement, and if it was inferred from my sentance, I was in err.

Ahhh....missed your dola....

Of course this makes me lose a LOT of respect for the Texas SC. Are we to assume then that they'd rather let the Feds deal with this one??? Ugh...

Why not...they had to know it was going to get appealed to the US Supreme Court either way. :D

As far as Georgia getting it right, there is actually still a law (at least it was the last time I looked it up) on the books indicating that sex out of wedlock was illegal. Whether or not this is ever enforced is another matter, but one wonders why a law that is never enforced would even be allowed to stay on the books...

Goes back to my general feeling about those unwillling to do what is right regardless of the consequences... They sound gutless to me. If they wanted to uphold the law, then uphold and deal with the backlash from the liberals and the likely US SC overturning of the case. If they wanted to strike it down, then strike it down and deal with the backlash from the pissed-off homophobes. It is bad enough when we have wimps in elected positions...

Teenek--

Because if it is not enforced, it is not hurting anyone, and so why take the political risk of overturning it? At least, I assume that's how the politicians look at it.

SD--I agree completely.

Well, that's a whole different discussion. There are a bunch of laws on the books in many states that aren't enforced, but that no politician would have the guts to touch with a ten-foot pole. Not even the most liberal politician in Georgia wants to be labeled as the guy who is in favor of adultery. :p That one will be struck down by courts, f it is EVER enforced...

In defense of state SCs - they can only hear so many cases that get appealled. Maybe they should have heard this one (I definitely think so), but there are always going to be a large majority of cases that don't get reviewed.

There might be an explanation for this, though I'm not sure. Maybe one of our denizens who hails from the Great State of Texas can clarify this, but are judges elected in Texas?

In Arizona, state judges all the way up to supreme court justices are subject to recall and a removal vote every two years...so they *ARE* elected officials...though generally state judges don't get voted out of office unless they've done someting egregious.

The Supreme Court done good.... since I accept that there is no way that substantive due process will ever be declared unconstitutional, it's a good decision to me :D. I mean they had to expand the right to privacy sooner or later. It was untenable the position they took in Bowers where it was decided on do homosexuals have the right to sex rather than do they have a right to privacy. So, good decision. Great week by the US Supreme Court. I can't say I disagreed with them on a single decision.

I wish we judged our elected officials by how many laws they repealed rather than how many they created.

If that is the case, that just means they have a bit of justification for the fact that they are gutless. :D

Dang, you beat me to it. ;)

Well, I guess you knew this would be coming. Actually, it was SkyDog that first brought this up a couple of years ago but consider this (if you are willing):

Three points. First is the fallacy that many "fundamentals" make in that they make homosexual acts a specific criminal target (as apparently what the Texas Legislature did). If they (or anyone) is basing such laws on Scriptures, how can they then ignore other sinful acts - like adultery and greed and getting drunk and using drugs??? They are no different but a lof of folks seems to think otherwise.

Second. The Constitution, English Common Laws and many other codified laws were based on Scriptures. Many of the Framers believed in the Scriptures and subsequently, many regular folks in our history believed in the Scriptures. Were they then not supposed to use any of this in their thinking? If you do (or whatever you believe in), how are to reconcile this and make laws? More rhetorical than anything else.

Third. As Galt seems to always be on the side of homosexual rights, it is not about being homosexual at all. It is not wrong to call yourself "gay" (which some seems to have a problem with) but the Scriptures only talk about homosexual acts, which hetereosexuals can do as well. The point of this passage is that there are better things to be doing, that's all.

So yes, I believe the SC did make the right ruling given the circumstances.

This is truly a great day for pillow-biters everywhere.

"You're the catcher, and I'm the pitcher!"

Hmmm. There is a fundamental difference in how I think about this ruling, and how some of you do. I don't think of this as "homosexual rights" but rather "human rights."

You disrupted a perfectly good discussion with this, because???

Because everyone knows gay jokes are always funny, right?

Actually, there have only been a couple of guys in the upper courts I can recall being removed in recent years.

A lower court judge was actually stupid enough to try to cross the Mexican border while carrying marijuana (he got busted by Customs).

If I recall correctly, another one was busted on some sort of a morals charge and was removed.

Other than that, we haven't had anything other than the occasional random Justice of the Peace removed in 30 years, so appointment to a judicial position here basically means for life, unless you do something really stupid.

Only at FOFC would a thread about sodomy get to a second page in just a few hours.

I have one more question SkyDog.

Since when have politicians needed justification to be gutless?

And Marmel, imagine how long this thread would be if it were about sodomy with, say the winner of "Hot Chick Survivor"?

Hey, if you can't mock ankle-grabbing turd burglars, who can you mock?

You are not supposed to mock anyone.

I disagree with the petty anti-homosexual statements being made by Franklinnoble in this thread.

For the sake of civility, please stop name-calling.

John Galt is going to be mad at you.

John Galt has learned from other threads that this particular pseudo-troll will try to be as rude and vulgar as possible with no apology.

I always wanted to speak about myself in the 3rd person.

But, I'm not really John Galt, so I guess I didn't succeed. :(

Sure you are. Just look to the left of your posts and you will see that, in fact, you are John Galt. I thought you high priced, business casual NYC lawyers were smarter than that.

Dola....

so does this mean we are once again allowed to use the term 'faggot' here, or does only FranklinNoble get the priviledge? ;)

I dunno... can we get a ruling from the Supreme Court on this? Buggery is OK, but what sort of language are we allowed to use to describe its participants?

Aside from the recent idiot-jacking, this has been a pretty interesting thread - a more open minded discussion than is often seen on such sensitive subjects. Sorry I've been in crisis mode nearly all day, and missed most of the fun.

The quick summaries of the tenth amendment and how it fits in here were illuminating to me - I don't think I could have been that succinct.

Hmm...

Very succinctly put QS. :)

Nice to know this kind of crap is allowed in here. :rolleyes:

Maybe it should be "thread-jerking" - you think?

Why are you always generalizing about liberals and conservatives? I know many conservatives who celebrate personal freedoms, and thus this ruling...

And there are plenty of liberals who are homophobic.

And then there is Fritz.

Here is the point. The supreme court just made a new law. That is not their function.

Yes, we all agree (most of us anyway) that the laws of these states banning this practice is none of their business. People should be allowed to choose to do this. However, it is up to the people of the states to vote people in office that will CHANGE the law. It isn't up to the SC to decide this.

The supreme court has gone from interpreting the laws to creating laws. This is a very, very disturbing.

Be happy when the states change their laws. That is how the system is supposed to work. Don't be happy because the majority of the Supreme Court has forgotten their job.

No, they did not.

All they did was make sure that the state of Texas respected the constitutionally protected rights of private citizens in their own homes.

These rights were already 'law' and they were just enforcing them.

Nope, this is striking down a law, not creating a law. When dealing with other issues, the SC have created laws, but this was a case of striking down a law that should never exist.

What the Supreme Court actually did is strike down a law. They did not create 'new law.'

I'm gonna piggy-back on the "What the Hell are you talking about" crowd and point out that the Supreme Court struck down a law and that's it. No new law is on the books.

CR

Nope. It isn't. Franklin, I've warned you once before. You'll be able to post again on Monday.

:D

So this means we can't use derisive terms, right?

No, it means continual trolling and threadjacking won't be tolerated. He's been warned for threadjacking and trolling before.

Whatever. The facts are that some states have it on the books that it is illegal. There is nothing in the constitution that says the states can't make such a law. The supreme court has no business striking down a law that isn't unconstitutional.

The people in the states should elect folks that will change their laws. Did you read the dissention?


here is the whole doc ruling

This has been a really interesting discussion about the role of the Supreme Court and the 10th Amendment, but with regards to Lawrence v. Texas it wasn't about that. The Texas law banned sodomy among members of the same sex, clearly making it a 14th Amendment case.

This ruling didn't reverse the judgment made in the previous sodomy case or strike down the laws currently in 9 states that ban sodomy among all citizens. While some of the comments in the decision hint towards a position allowing almost every form of sexual encounter not involving threats or money (like sodomy, polygamy, incest) it was not explicitly stated as so.

While I personally hate anti-sodomy laws, as well as other laws affecting freedom of people in private settings, I agree that the federal courts are not the place to change these, it is the state legislatures and courts. But in this instance, I believe it was the correct decision from an equal-protection standpoint.

From what I've read, you are totally wrong on this. The decision was not made on Equal Protection grounds. The Court could have made that limited holding, but instead chose to overturn Bowers. The 14th Amendment reference in the decision is to the Due Process clause of the 14th Amendment.

Curious, if this was a law against Polygamy, should it be struck down as well?

No offense, but you pretty much ignored most of what was written in this thread. The majority decided that the constitution WAS inconsistent with the law. They didn't strike down a law just because they felt like it. Being condescending when you are just plain wrong is doubly bad.

Polygamy is probably the closest analogy to homosexuality among the alternative lifestyle choices (unlike the nonsensical examples of incest, beastiality, rape, etc.). Still, it is pretty different. Polygamy has to do with the state defined institution of marriage, not the act of having multiple partners. The state doesn't prohibit multiple partner relationships, it just doesn't honor multiple marriages. An analogy between polygamy laws and the ban on gay marriage would be closer, but the analogy to sodomy laws is still pretty strained.

That is what Justice Kennedy says in his opinion. The concurrence, written by Justice O'Connor seems to go for the much narrower equal-protection angle. I can't find who Breyer, Stevens, Souter and Ginsberg joined. If all 4 agreed with Kennedy, then it would overturn Bowers.