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Today, the Supreme Court handed down Lawrence vs Texas, a decision finally overturning Bowers vs Hardwick and making sodomy laws regarding consenting adults invalid.
Basically, the majority opinion says that the Due Process clause of the 14th amendment ("nor shall any state deprive any person of life, liberty, or property, without due process of law;") has been interpreted to mean "right to life, liberty and property", and "liberty" includes consensual sex.
Justice O'Conner has a partially concurring opinion that basically says that's wrong, and Bowers should not be reversed, but because Texas discriminates against homosexuals, it violates the "equal protection of the laws" that comes right after the due process clause and the Texas law alone should be struck down.
Scalia dissents, essentially arguing that the laws come under "rational basis" scrutiny, that there is a legitimate state interest in legislating morality, and thus these laws are not unconstitutional --- undesirable maybe, not not unconstitutional. He then takes the court to task for creating a new right when it should be left to the legislative bodies to decide when society is ready to accept a change in the moral code and lists some things that this ruling will allow under similar arguments, namely gay marriage.
He also dissents with Justice O'Connor, arguing that because the law bans both male-male and female-female sexual acts, it does not violate the equal protection clause.
My Opinion
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Well, I hope he's right about what this ruling allows --- most of the things he lists as being allowed by these arguments are things that *should* be allowed, and in fact, I would argue that in a truly free society, the moral code *cannot* be legislated. Further, for the vast majority of people, the moral code is based on religious principles, and so legislating the moral code violates the separation of church and state.
As for the opinions, first off: Scalia is laughably wrong about the equal protection clause. He essentially says that because Gay men and Lesbians are treated the same, there's no problem, but he's left out 90% of the population in his comparison. He argues that its only the specific acts that are banned, but the equal protection clause applies to people, and that means gay men, Lesbians and straight couples. Clearly, in Texas, gay men and Lesbians are *not* treated the same as straight couples. And yes, the same argument applies to marriage. Scalia himself makes many of the arguments on that that the gay community has for years.
While I am glad that sodomy laws have been struct down, I do think it's unfortunate that it was done in the way it was. I do agree with Scalia that the court is twisting the constitution to rationalize their decision, because the "due process" clause merely says you have to follow the rules, whatever they are when you limit someone's freedom. A lot more has been read into that than should be, I think. In fact, in Bowers, they warned about exactly that:
Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation [478 U.S. 186, 195] of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments
The fact is, this country was founded on the principle that:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The founding fathers put the rights they were fighting for into the constitution, and specifically in the Bill of Rights, including freedom of religion, but noted in the 9th amendment that it was not a complete catalog of them.
The very first thing in the Bill of Rights, is this:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
I think a key point here is that this implies freedom *from* religion as well --- that's rather the point of the "separation of church and state" interpretation as well. If you codify one or more religion's morality into law, you've effectively state sanctioned those religions over the rest. Given that most opposition to homosexuality is taken from a religious perspective, I think the 1rst Amendment should be the primary weapon against anti-gay laws.
But more generally, this country seems to have a serious case of hypocrisy when it comes to freedom: most people seem to want the freedom to do what they want, *including* telling other people what they can do. These people completely don't get the entire concept of freedom. The freedom to be and do only what other people approve of is *NOT* freedom.
Put another way, freedom has absolutely no meaning unless you apply it to something you don't approve of.
This means that if someone has the authority to say two men can't marry, they are not free.
If someone has the authority to say a man can't marry five women, they are not free.
If someone has the authority to say a group of people can't form a church that limits its membership to those willing to restrict themselves to a more rigid set of rules, they are are not free.
In a free society, the right of government to limit freedom is to keep one group of people from interfering with another group's freedom, or to arbitrate when there is a conflict. And "conflict" does not mean "they're limiting our freedom simply by exercising theirs".
Clearly, we have a long way to go before we will have a society that truly respects the concept of freedom.
Posted by abatie at June 27, 2003 02:21 AM