The Supreme Court made today a good day

[digamma]

They joined with Kennedy, making it a true majority opinion.

[albionmoonlight]

A--

I agree with John. I think that states have the right to define marriage however they want. You do not have a right to be married. I think that if a state were to ban the institution of marriage, it should be allowed to do that.

[ISiddiqui]

You know what is amusing (to me), if the court followed O'Conner, and ruled this on Equal Protection, it might NOT be narrow. After all, gays could be able bring suits, say on marriage, and use this case as precedent for an equal protection argument. By confining this to having a right to privacy in the bedroom, gays cannot use this suit to benefit them in other areas. So the 'narrow' interpretation actually may have allowed broader rights.

[John Galt]

Originally posted by ISiddiqui
You know what is amusing (to me), if the court followed O'Conner, and ruled this on Equal Protection, it might NOT be narrow. After all, gays could be able bring suits, say on marriage, and use this case as precedent for an equal protection argument. By confining this to having a right to privacy in the bedroom, gays cannot use this suit to benefit them in other areas. So the 'narrow' interpretation actually may have allowed broader rights.

No, the decision would still be narrow. Gays can already bring any suit they want under Equal Protection. The problem is that they are not considered a "suspect class." The result is that the court applies a "rational basis" test which almost always upholds the statute in question. The concurrence in this case applied rational basis, but struck down the statute. It did not extend or alter equal protection analysis for gays.

[ISiddiqui]

No, the decision would still be narrow. Gays can already bring any suit they want under Equal Protection.

Wouldn't matter if it was narrow. Its more precedent to bring forth to try to get gays on the same level as women (semi-suspect). A more gay-friendly court in the future could basically say that O'Conner said she applied rational basis, but actually applied middle-tier scrutiny, and read it that way.

[John Galt]

Originally posted by ISiddiqui
Wouldn't matter if it was narrow. Its more precedent to bring forth to try to get gays on the same level as women (semi-suspect). A more gay-friendly court in the future could basically say that O'Conner said she applied rational basis, but actually applied middle-tier scrutiny, and read it that way.

That would be a stretch. I think her opinion, if it were the majority opinion, would only ensure gays never achieve suspect status. It would pretty much lock them into rational basis and people would just think it was an outlier decision on the application of the test. I think it would be almost like a reverse-Korematsu. That is, Korematsu started strict scrutiny, but was the only opinion to survive the test. If the concurring opinion were the majority, I think future courts would always apply rational basis, but uphold the statutes in question. I'm just happier the way the opinion is now - hopefully a real EP decision will come down the road.

[ISiddiqui]

That would be a stretch.

It wouldn't be the biggest stretch the Court has made, not by a long shot. You know this and I know this .

[SplitPersonality1]

Great discussion guys (barring the mini-troll session). I am actually learning quite a bit here. Keep it up.

- Splits

[CamEdwards]

I too am learning quite a bit here. I wish I could have John Galt or another attorney come on the program tomorrow to help me understand this issue a little bit better.

[JPhillips]

From Scalia's dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.


Conservatives, how can you put up with a guy that thinks government should have the right to criminalize masturbation?

[superbama]

J Phillips- I read out of it he was basically throwing his hands up saying " Why don't we french kiss our sister/wife while beating off our husband who happens to be a goat. Let's do it at the Pick n Pay." A basic what is the world coming to kinda thing, is sounds to me.

[CamEdwards]

Originally posted by JPhillips
From Scalia's dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.


Conservatives, how can you put up with a guy that thinks government should have the right to criminalize masturbation?

We put up with him the same way you liberals put up with a guy who thought it was a great idea to get a hummer from an intern in the Oval Office. the same way you put up with a woman who blamed the whole thing on a vast right wing conspiracy, the same way you put up with a man who says "Clarence Thomas may be my color, but he's not my kind", the same way you put up with a man who says "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

Should I keep going?

[Ben E Lou]

Originally posted by CamEdwards
the same way you put up with a man who says "When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day."

That guy is SCARY. When I heard that yesterday, it sent shivers up my spine.

[QuikSand]

Originally posted by JPhillips
From Scalia's dissent:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.


Conservatives, how can you put up with a guy that thinks government should have the right to criminalize masturbation?

Though I don't think I'm the guy you had in mind to respond to this question - I find Scalia's logic here pretty sound. While I (and many people) bristle at the potential repercussions of many of Scalia's articulated opinions, he is rarely without well-conceived backing for his positions.

Actually, I think Cam's response (while partially intended to be humorous, I understand) gives Scalia short shrift. The man is a bona fide deep thinker, and whether you like his views or not, he generally merits respect for that.

[Honolulu_Blue]

Originally posted by CamEdwards
We put up with him the same way you liberals put up with a guy who thought it was a great idea to get a hummer from an intern in the Oval Office...

Well at least that guy could negotiation sound, intricate foreign policy issues on the phone while getting said hummers for an intern in the Oval Office. The current guy can't even eat a pretzel and watch TV at the sametime.

[JPhillips]

Cam: Do you have anything that actually supports Scalia, or do you only have shots at liberals? Why is it that every time conservatives are questioned they fire back with "well liberals suck"? Can't you come up with a defense of your guys?

For the supposed small government party, its amazing how you are either willing or complicent with government imposing authority over our private lives. Scalia and Santorum and others think the governmant should be allowed to criminalize sexual behavior between consenting adults. How is this conservatism?

[albionmoonlight]

I am on the opposite end of the political spectrum from Justice Scalia, but I have a lot of respect for the man. He is a great writer. People today generally do not respect those with whom they disagree--and that is a damn shame.

Having read the opinions last night, I must say that I was not very impressed with the majority opinion. The majority spent a lot of time explaining that laws and attitudes against homosexual conduct were not as pervasive as the Bowers court claimed that they were at the time and then said that the conduct in question was a legitimate exercise of liberty. They did not discuss the problem in the traditional due process (or even the right to privacy) framework.

As a quick primer. The Due Process Clause of the 14th Amendment protects liberty. People have liberty interests in doing lots of things. Most of those things, however, are not "fundamental rights." If the liberty you want to exercise is not "fundamental," then the government only needs a rational basis for depriving you of that liberty. So, you have a right--a liberty interest--to walk when and where you want. The government, however, only needs a rational basis to prevent you from exercising that right. So, the governmental interest in stopping jaywalking or protecting the grass in the park is enough to allow the government to pass laws that prevent you from walking in certain places at certain times. The "rational basis" test almost always goes to the government. The governmental action would have to be almost insane for a court to say that it was not "rational" as that term is defined in this context. Even if you could somehow provide evidence showing that walking on the grass was good for it, the government would still win in my example. The question under rational basis is not whether the government action is right--but whether any rational person could believe that it was right.

Certain rights, however, are considered "fundamental rights." (Some of these are expressly listed in other amendments to the constitution--the most obvious being the right to free speech. However, for the sake of this discussion, we will limit ourselves to the due process clause of the 14th amendment). For example--the right to custody of one's child. In those instances, the government needs a "compelling interest" in depriving you of that right, and the means they use to deprive you of that right must be "narrowly tailored" to meet that interest. Such a test is called "strict scrutiny." The government has a much harder time winning these cases. Even if the government could show that taking high IQ children away from their family and letting QuikSand raise them would allow them to reach their full potential and be better for society--the government will not be allowed to do that because the interest in having smart kids reach their potential--while rational (and even important)--does not reach the level of "compelling."

A state does have a "compelling" interest in preventing child abuse. However, taking away all children from, say, a neighborhood where a child abuse occurred on the theory that the neighbors may have picked up the habit would be too broad of an action. It would not be "narrowly tailored" to serve the interest--no matter how compelling.

[I'll throw my caveat in here--the law raises lots of issues. Even the 14th Amendment raises issues of procedural due process and equal protection that I am not discussing here. All of these issues relate to each other. This discussion, therefore, is incomplete. Feel free to fire questions to me, John or other attorneys if they arise. Law, despite what some think, is just as complicated as economics, medicine, etc. When you really get to the meat of the issues--it is impossible to discuss them fully, in all of their beautiful subtlety, in any reasonable length of time.]

What constitutes "fundamental rights" under the 14th Amendment is one of the main points of contention between ideological conservatives and ideological liberals in the law. The most strict conservatives would state that if a right is not expressly granted in the constitution (i.e. free speech), it is not fundamental. To them, liberty means nothing more than the ability not to be forcibly detained by the government without cause. They argue that to continue to expand the definition of "liberty" to make more and more rights "fundamental" is to turn the constitution into nothing more than a blank slate unto which the popular sentiment of the day can constrain governmental action in a way never intended by the founders. Such an approach also raises the problem of 9 un-elected lifetime tenured people in Washington D.C. getting to strike down the laws promulgated and enforced by the elected representatives of the people. It is too easy, they argue, for courts to abuse their unchecked power to "interpret" the constitution to force their idea of good government unto the rest of us. Based on my example above, their view raises a problem (which may have occurred to some of you). Specifically, the government under their view of the constitution has the right to take our children and raise them as long as it has a rational basis for thinking it can do a better job than us. I think I have read some science fiction books about that world, and it is not a good place. The conservatives, however, would respond that if we do not want such a system, then we should not elect a government that will pursue such a policy. We have rights to free speech, press, and elections that would allow us to keep informed about what “big brother” is doing and allow us to stop it. Also, the conservatives point out, the constitution is amendable--if the vast majority of the country (2/3 of congress and ¾ of the states) believe that something is a fundamental right, then we can amend the constitution and expressly make it such. Because a lot of strict conservatives are painted as compassionless men, it is worth noting that many of them disagree with the policies that they would uphold (Justice Thomas wrote a short additional dissent in the case yesterday just to indicate that he thought that the law at issue in Texas was silly and wrong), but feel that their duty to uphold the Constitution of the United States requires it.

On the flip side, extreme liberals want every “good idea” to become a “fundamental right” protected by the 14th Amendment. The right not to live in poverty; the right to health care; the right to an education; the right to consume any substance that one wants, etc. Some of these more extreme examples aside--they believe that the constitution is a document based, above all else, on personal liberties. They believe that the drafters specifically used a vague world like “liberty” precisely because they wanted future generations to have the flexibility to decide what issues are core to issues of personal freedom and expression. They believe that it is as silly to expect the drafters to have been able to write down in detail all of the personal freedoms that they wanted to protect until the end of time as it would be to expect them to have had strong opinions about the Internet. They also point out that certain liberties were so obvious that they did not need to be written down (just like when you send out a wedding invitation, you don’t feel a need to tell everyone not to show up drunk, or naked, or covered in blood. You just assume that people understand what is so basic that it goes without saying, and you only bother to write down clarifications of the more questionable aspects of behavior--i.e. “black tie required.”) They also argue that the constitution was drafted by people who, while virtuous, were also certainly human and who had their own interests in mind, too. Accordingly, the constitution protects white landowners AND is very hard to amend. The amendment process is too cumbersome to be anything more that a theoretical protection against the tyranny of government. Finally, they also point out that the whole point of courts and personal liberties protected in the Constitution is to protect the 49% of the people from the will of the 51% of the people who want to take away their rights.

Most people fall somewhere in the middle of this spectrum. They believe that certain rights, such as the right to raise your children, are fundamental rights. They believe that others, such as the right to not live in poverty, are great ideas, but not fundamental rights. Others “fundamentl rights” are more controversial--such as the fundamental right to an education, the fundamental right to an abortion (which has developed its own jurisprudence, actually), and the fundamental right to engage in private consensual sexual conduct.

Since the court expressly overruled Bowers in this case, I think that they could have gone farther (it is rare for the court to expressly overrule another case. A lot of times they just ignore it and let it die a slow death). I would have said that consenting adults have the “fundamental right” to engage in private sexual conduct. The majority did not go that far--and Scalia took them to task for it. Such a ruling would have required overturning some precedent, but since they did that anyway, I would have gone a step further.

Of course, such a ruling would have opened the door to incest. I would claim that a state does have a compelling interest in preventing incest, but not one in preventing other forms of consenting sexual conduct. Justice Scalia would jump down my throat and tell me that I am simply imposing my personal views on what is compelling and what is not. On some level he may be right. However, I think that I could defend my opinion.

The majority of the Supreme Court yesterday said that the government cannot intrude on your right to engage in private sexual acts in your bedroom. Good for them. They did not, however, really explain how they reached that decision. Bad for them. Perhaps the whole rational basis/strict scrutiny framework needs to be tweaked (and indeed, in the context of equal protection, abortion, etc. deviations from the framework are made). I would, however, have appreciated the justices making things a bit more clear in this instance.

[Bonegavel]

Originally posted by John Galt
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.

None taken and I wasn't being condescending, but you are apparently quick to judge. Emotions are hard to handle I'm sure. Also, how am I wrong on this? Oh that's right, I don't agree with you. (now I'm being tongue-in-cheek)

FWIW, your statement is backward. The law is inconsistent with the constitution (constitution being the base class).

[John Galt]

Originally posted by BoneGavel
None taken and I wasn't being condescending, but you are apparently quick to judge. Emotions are hard to handle I'm sure. Also, how am I wrong on this? Oh that's right, I don't agree with you. (now I'm being tongue-in-cheek)

FWIW, your statement is backward. The law is inconsistent with the constitution (constitution being the base class).

This was your original quote:

Originally posted by BoneGavel
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?

I think the "whatever," "the facts," and "did you read the dissention?" was pretty condenscending. And I have no idea what you mean about emoticons when none were present.

And your statements that, "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." are non-sequiters with the way this case was decided. The majority believe that there is something in the Constitution that the states can't make such a law. If you disagree with that statement, then argue it - don't say that they are striking down just for the fun of it.

And as an aside, what would possibly make people think that getting new people elected is EVER a solution? Gays are unpopular, blacks were unpopular (and still are in many places), and women were held in lower regard. Sometimes it is popular to discriminate and minority interests aren't well reflected in a system that uses simple majority rule. "Tough luck" seems to be a pretty easy thing to say when you aren't allowed to be intimate with the person you love because some people in power don't like you.

[John Galt]

dola,

Good post albionmoonlight. While I generally agree that Scalia is a good writer and his opinions are pretty smart (with a few notable exceptions), I think his analogies are weak in this case. Sure, the majority didn't handle them, but majorities often don't reply to the concerns of the dissent (especially when they are busy replying to an old decision). Incest, for example, is objectionable on biological grounds (which is proven by the fact that some incest - usually 2nd cousins) is allowed). The marriage issues are also different as the discussion with Arn&$&@) above indicated. I just don't think there is another issue that is analogous. Yes, the majority didn't really define privacy, but that may have been because they couldn't agree on one. They all agreed that this was a privacy issue, but that doesn't mean they agree on where privacy begins and ends.

[Anrhydeddu]

is objectionable on biological grounds

Hmmm...

[John Galt]

Originally posted by Anrhydeddu
Hmmm...

I take it you disagree or is that just thinking outloud?

I admit I'm not super educated on the ways of incest, but the reason for not allowing it seems to be premised on the dangers of shrinking a genetic pool with inbreeding.

[albionmoonlight]

It's a tricky issue. If, as I want, you define consenting sexual conduct ("csc") as a "fundamental right," then you need a compelling state interest to overcome that right.

Assume for the sake of argument that the "eleven-fingered" kid reason is "compelling?" Then could a couple be allowed to engage in incest if no child could come of that union (say, homosexual incest). The "narrowly tailored" portion of the fundamental rights analysis would say yes.

Personally, I think that the socital taboos against incest, combined with the biological arguments do make incest different in kind than other types of csc and give the state a compelling reason to ban it wholesale. Strict concervatives would say that that kind of weighing is the exact sort of thing that judges should not be doing.

I say that judges are human, not robots, and sometimes choices have to be made. The choice that incest is different in kind than sodomy is one that I believe that a judge can make while still being true to the constitution and judicial principles.

FWIW--and I feel somewhat weird even writing this--if it somehow came down to a world where I had to choose between the state prevening people from engaging in private consentual sexual conduct, and a world where incest was allowed--I would have to go with world two. In my mind, the right to freely express oneself sexually is so important and so fundamental to the notions of personal liberty and privacy on which this country was founded, that I would allow something like incest to exist if it were the only way to protect it.

That said--I think that it does a disservice to homosexuality and to hetrosexuals who wish to engage in sodomy in general--to compare it to incest. I only use the analogy because it seems to be a logical extention of the framework that I laid out above. (And that the majority avoided--for what are now probably obvious reasons).

[albionmoonlight]

Dola--

John, I did think that Scalia hurt his case by focusing so much on the Casey case, too.

Proof that the justices are human--the majority could not stop talking about homosexuality, and the dissent could not stop talking about abortion in a case, IMO, that at core did not need to discuss either.

[Bonegavel]

Originally posted by John Galt
This was your original quote:



I think the "whatever," "the facts," and "did you read the dissention?" was pretty condenscending. And I have no idea what you mean about emoticons when none were present.

And your statements that, "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." are non-sequiters with the way this case was decided. The majority believe that there is something in the Constitution that the states can't make such a law. If you disagree with that statement, then argue it - don't say that they are striking down just for the fun of it.

And as an aside, what would possibly make people think that getting new people elected is EVER a solution? Gays are unpopular, blacks were unpopular (and still are in many places), and women were held in lower regard. Sometimes it is popular to discriminate and minority interests aren't well reflected in a system that uses simple majority rule. "Tough luck" seems to be a pretty easy thing to say when you aren't allowed to be intimate with the person you love because some people in power don't like you.

Wow. Maybe I should have recorded my voice saying "whatever" being that inflection is the key. Just as the term liberties can mean different things, so can "whatever."

My comment wasn't about 'emoticons', it was about emotions. There seemed to be a lot of emotion coming through your post. Maybe I had assumed incorrectly as had you. Maybe we all are reading too fast.

For the record, I think that these laws against what people do in the sexual department are ludicrous. I think other laws are ludicrous, but that doesn't mean they aren't law. I can't pick and choose which laws to obey (if I wish to remain out of jail or keep from monetary fines).

This law wasn't based on race which would have made in unconstitutional. It was based on a preference which isn't neccesarily protected. That is why drugs are illegal and it is constitional for this to be. It is something society deems bad, so there are laws against their use (for everyone).

If this is the prevailing thought, then anti-drug laws should be stricken from the record. If I make a meth-lab in my bedroom and only make drugs for myself without intent to distribute, that should be legal under this thought process. I'm not hurting anyone and it is no business of yours what I do in my bedroom.

[Malificent]

Don't the vast majority (if not all) sodomy laws also apply to oral sex? Making the vast majority of Americans criminal?

[ISiddiqui]

Conservatives, how can you put up with a guy that thinks government should have the right to criminalize masturbation?

Because... he's correct?

I mean, Scalia believes that the 'right to privacy' and 'substantive due process' are extra-Constitutional concepts. That the court just made them up out of thin air (and they kinda did, IMO... I agree with Scalia here). Of course he knows you can't put the genie in the bottle, so he'd rather narrowly constrain what is 'fundamental' and what the 'right to privacy' is (I'd rather make it consistant since it is here to stay).

If there is a limited right to privacy, than the states can criminalize masturbation and there is nothing wrong that.

I guess based on my belief that Substantive Due Process is not under the Constitution, you could put me under the grouping of 'thinks the government has the right to criminalize masturbation'. BUT just because it has the right, doesn't mean it has to exercise it. After all, the government has the right to ban computer sales (interstate commerce), but it doesn't. I'm a moderate libertarian, so I would like to see Prostitution, Masturbation, Sodomy, etc legal, but I also believe that it should be by the democratic process.

[Bonegavel]

John Galt, I just didn't want you to miss my post. Please read and follow up on our discussion. Thanks.

bone

[John Galt]

Originally posted by BoneGavel
Wow. Maybe I should have recorded my voice saying "whatever" being that inflection is the key. Just as the term liberties can mean different things, so can "whatever."

My comment wasn't about 'emoticons', it was about emotions. There seemed to be a lot of emotion coming through your post. Maybe I had assumed incorrectly as had you. Maybe we all are reading too fast.

For the record, I think that these laws against what people do in the sexual department are ludicrous. I think other laws are ludicrous, but that doesn't mean they aren't law. I can't pick and choose which laws to obey (if I wish to remain out of jail or keep from monetary fines).

This law wasn't based on race which would have made in unconstitutional. It was based on a preference which isn't neccesarily protected. That is why drugs are illegal and it is constitional for this to be. It is something society deems bad, so there are laws against their use (for everyone).

If this is the prevailing thought, then anti-drug laws should be stricken from the record. If I make a meth-lab in my bedroom and only make drugs for myself without intent to distribute, that should be legal under this thought process. I'm not hurting anyone and it is no business of yours what I do in my bedroom.

BG, I think you are missing my point that whether or not you believe gayness is the same as race (a point I believe and is supported by evidence) in regards to immutability, ultimately moral judgments are essentially popularity contests. Many scholars argued blacks were inferior, dangerous, and a threat to white America. Similar (albeit less extreme) arguments are made today about those of Middle Eastern dissent. Minorities (be they racial or otherwise) suffer the brunt of society's disfunctional attitudes. Any group can be discriminated against if you get enough people behind it. There are checks against racial discrimination, but I'll be damned if I have to wait centuries for their be protections against heterosexism.

Gays will NEVER be able to vote out people who oppose them, because they only are a small portion of the population. Even if they could make gay rights the single issue defining an election (something that is extremely unlikely), they would always lose in a landslide. Saying minorities should just get the laws changed is a recipe for constant and continual discrimination.

And sodomy laws are a horrific violation of a person and their identity. Fearing that you cannot be sexually intimate with your loved one because the police can come through the door at any minute is wrong. This is not about making meth in your home or building bombs in the bedroom - this about people having the right to love. These analogies deny gays the right to exist - they are no danger and it is fundamental to who they (we) are.

This is not Mill's harm principle - it is not just that you aren't hurting anyone - it is that you are exercising a basic right essential to your identity. Being gay isn't wrong and this Court finally removed the ugly blemish that was Bowers from saying it was wrong. That is why yesterday was a good day.

[albionmoonlight]

Originally posted by John Galt
That is why yesterday was a good day.

Well . . .that and it has finally stopped raining here in DC


Also, John, let me express my happiness for you, for whom this decision is more than an intellectual exercise. Sometimes it is easy for me to forget that the law has real effects on real people--and is not just a big brainteaser put here for my amusement. I am happy for everyone for whom this decision represents more than the abstract exercise of 9 old people in D.C.

[Bonegavel]

Originally posted by John Galt
BG, I think you are missing my point that whether or not you believe gayness is the same as race (a point I believe and is supported by evidence) in regards to immutability, ultimately moral judgments are essentially popularity contests. ...

[cut for brevity]

...
That is why yesterday was a good day.

Very well said and you are right, I don't believe that being gay is the same as race anymore than I think being straight is the same as race.

Bottom line is that nobody should be discriminated against due to race or sexual preference, just as one shouldn't for being a computer geek, because of how one dresses, or for being over weight. But, one of the curses of our freedom is that people are allowed to be bigots, homophobes, nerd-bashers, fashion police, and just plain insensitive schmucks.

In their personal lives that is true. In business world, thank god, that is illegal. Does that mean it doesn't happen? Of course not. I'm sure it happens all the time. When it can be proven, it goes to court and the situation is rectified and the person is "made whole" again to the fullest extent of the law.

I think you are making a mistake by lumping all gays together into a militant group of anti-establishment dissidents. There are many gays that are very "mainstream" and actually agree with scalia. Just because you are gay doesn't mean that you think the law should be subverted and/or ignored. I am good friends with several gays and the subject itself (i.e. being gay) never comes up. Same for my hetero friends. We don't around and talk about how we sleep with our wives or girlfriends. Just doesn't happen.

The case for being gay NEVER need come up exactly the same as the case for being straight NEVER need come up. This is never placed on a resume or asked on a job application. So how does the employer know unless the person tells them? And if that is the case, why would they say this, when I have never heard of a hetero mentioning this to an employer. "Oh yeah, by the way I sleep with women."

Also, who is to say that all gay men practice this custom? That is another assumption that is made. I never conducted a survey of this subject, but I'm sure that it is fair to say that this isn't done by all gay men. I'm sure you don't wake up one day and think that the ONLY way a person can show love for me and be intimate is to have anal sex. Besides, this act isn't limited to gay men. Plenty of male-female couples do this as well. Again, that is their business. Who cares.

I still go back to the fact that this opens up a lot of doors for a lot of lawyers and should have been handled by Texas. Remember, privacy cannot supersede the law. The authorities can come into your home without your permission in certain cases: search warrant etc.

If you are a gay man living in texas where your idea of intimacy is illegal, why don't you move? Do you know how many people move all the time because of laws etc.? My brother-in-law is thinking of moving from NJ to PA because of the gun laws. He loves guns more than my sister and he is thinking of uprooting himself because of the law. People move to Florida to avoid income taxes.

[Bonegavel]

Oh john, and your point about being gay isn't wrong is very subjective. Some people (me not included) think it is wrong. Are they not allowed their belief? If they are to be tolerant of gays, shouldn't gays be tolerant of them?

My mom is a bible thumpin' christian and she thinks it is against god's will to be gay. I always argue with her that (genetic argument aside) people don't choose with whom they fall in love. She doesn't understand how I can think this, but I do understand how she thinks. I think she is wrong, but I understand her.

[John Galt]

Originally posted by BoneGavel
Very well said and you are right, I don't believe that being gay is the same as race anymore than I think being straight is the same as race.

One point that is an easy test on this issue (that was made in other threads). If you believe that being gay is a choice and not largely determined by genetics, then go sleep with a man. If it is a choice, then go do it - be gay for a day. There is a lot more powerful arguments on this point, but that is usually the easiest to make.

Originally posted by BoneGavel
Bottom line is that nobody should be discriminated against due to race or sexual preference, just as one shouldn't for being a computer geek, because of how one dresses, or for being over weight. But, one of the curses of our freedom is that people are allowed to be bigots, homophobes, nerd-bashers, fashion police, and just plain insensitive schmucks.

No one has suggested they can't - the question is do bigots get to decide what I do?

Originally posted by BoneGavel
In their personal lives that is true. In business world, thank god, that is illegal. Does that mean it doesn't happen? Of course not. I'm sure it happens all the time. When it can be proven, it goes to court and the situation is rectified and the person is "made whole" again to the fullest extent of the law.

It is actually still an open question as to whether you can be fire for being gay. Title VII only protects people from gender discrimination. Gays have been successful in arguing that they experienced "gender" discrimination, but it is far from settled. And how many employers actually fire someone for being gay and say so. It is almost impossible to prove unless they were stupid about it.

Originally posted by BoneGavel
I think you are making a mistake by lumping all gays together into a militant group of anti-establishment dissidents. There are many gays that are very "mainstream" and actually agree with scalia. Just because you are gay doesn't mean that you think the law should be subverted and/or ignored. I am good friends with several gays and the subject itself (i.e. being gay) never comes up. Same for my hetero friends. We don't around and talk about how we sleep with our wives or girlfriends. Just doesn't happen.

I would be willing to bet there isn't a gay man alive who agrees with Scalia on this issue. The gay population overall is actually quite right-wing (they are called Log Cabin Republicans), but no one would support Scalia on this issue.

And you continue to beg the question. I am not arguing that the law shoud be subverted or ignored. I am arguing (and the SC agrees with me now) that the law (the Constitution) says sodomy laws cannot exist.

Originally posted by BoneGavel
The case for being gay NEVER need come up exactly the same as the case for being straight NEVER need come up. This is never placed on a resume or asked on a job application. So how does the employer know unless the person tells them? And if that is the case, why would they say this, when I have never heard of a hetero mentioning this to an employer. "Oh yeah, by the way I sleep with women."

This is where I think you are just missing reality. Everyone talks about family, significant others, or personal issues. That is what happens at work. Gays are left with a choice - come out or lie. If they come out, they risk retribution and attack. If they lie, they don't have a chance to get close to their co-workers.

And of course, you don't say that you sleep with women, but I bet you mention a girlfriend or wife.

Originally posted by BoneGavel
Also, who is to say that all gay men practice this custom? That is another assumption that is made. I never conducted a survey of this subject, but I'm sure that it is fair to say that this isn't done by all gay men. I'm sure you don't wake up one day and think that the ONLY way a person can show love for me and be intimate is to have anal sex. Besides, this act isn't limited to gay men. Plenty of male-female couples do this as well. Again, that is their business. Who cares.

Now, you are just talking crazy. I'm sure not all gay man have anal sex, but for gays it is the logical analog to vaginal intercourse. It is a way to be intimate and share closenss. It is not a vile act. Would you support a government effort to ban vaginal sex and anal sex for heteros, but allow it for gays? Even if you wouldn't support it, would you think the Court should strike it down? No, of course, you would just believe that you could get the law changed. And you are right, because heteros are the majority. That is the naivete of privilege.

And sodomy has been defined to include oral sex sometimes. So no intimacy for gays is the law.

Originally posted by BoneGavel
I still go back to the fact that this opens up a lot of doors for a lot of lawyers and should have been handled by Texas. Remember, privacy cannot supersede the law. The authorities can come into your home without your permission in certain cases: search warrant etc.

Totally irrelevant. Search and seizure doesn't mean they can break into your house, steal everything and rape your wife. My example and yours have nothing to do with sodomy laws.

Originally posted by BoneGavel
If you are a gay man living in texas where your idea of intimacy is illegal, why don't you move? Do you know how many people move all the time because of laws etc.? My brother-in-law is thinking of moving from NJ to PA because of the gun laws. He loves guns more than my sister and he is thinking of uprooting himself because of the law. People move to Florida to avoid income taxes.

Voting with your feet is nice in theory. Of course, what happens when other states don't like gays because they are all flocking there? They pass more laws. Then all the gays can flock to one or two states and live on their own. Segregation - yeah that is a solution.

And mobility is a pipe-dream for lots of people. Family, work, friends, etc. make it hard to leave. People shouldn't be forced to choose between their identity and those other things.

And notice that 80% of what you posted above has nothing to do with sodomy laws. This is about a person's right to love - something that should not be taken lightly.

[John Galt]

Originally posted by BoneGavel
Oh john, and your point about being gay isn't wrong is very subjective. Some people (me not included) think it is wrong. Are they not allowed their belief? If they are to be tolerant of gays, shouldn't gays be tolerant of them?

My mom is a bible thumpin' christian and she thinks it is against god's will to be gay. I always argue with her that (genetic argument aside) people don't choose with whom they fall in love. She doesn't understand how I can think this, but I do understand how she thinks. I think she is wrong, but I understand her.

And notice that I have not argued that there should be a law prohibiting homophobia? Unfortunately, gays are not afforded the same treatment.

[John Galt]

Originally posted by albionmoonlight
Well . . .that and it has finally stopped raining here in DC


Also, John, let me express my happiness for you, for whom this decision is more than an intellectual exercise. Sometimes it is easy for me to forget that the law has real effects on real people--and is not just a big brainteaser put here for my amusement. I am happy for everyone for whom this decision represents more than the abstract exercise of 9 old people in D.C.

Thanks. And I make the same mistake. When you practice law, you often forget about people. It is sad, but true.

[Bonegavel]

Well John, I'll have to give you this round. Not being a constitutional scholar, my above opinions are based solely on my personal beliefs and thoughts.

I don't claim to know the plight of gays anymore than I can claim to understand the plight of any situation with which I am not involved or engaged in.

I think my concern with this thread stems from the fact that I am made nervous any time Supreme Court rulings cause this sort of stir. They have used their power both for good and bad, but my main concern is that, despite the good they accomplish (subjective subject, I know), the Supreme Court should not go around the constitution to accomplish what they feel is for the greater "good" of the people. I think we can all agree the latter is bad.

I have rarely, if ever, agreed with any posts you have ever made, but I am glad to have had this civil discussion with you regarding matters so important.

[QuikSand]

You two (and others who contributed to this thread) have done this forum a service. This was a very enlightening discussion - and the tone stayed very appropriate throughout. Thanks.

[sabotai]

Agreed with QS. It's a rare thing to see a serious thread on this board make it to the 3rd page without it turning into an insult throwing affair, or even a flame-war. Well done.

[Killebrew]

Yes, yes.

[CamEdwards]

so now that we've acknowledged that... can we start the childish insults?

[sabotai]

Ugh....Cam, I hate you so god damn much!

[Samdari]

Originally posted by Malificent
Don't the vast majority (if not all) sodomy laws also apply to oral sex? Making the vast majority of Americans criminal?

You're not married, are you?

[CamEdwards]

Originally posted by sabotai
Ugh....Cam, I hate you so god damn much!

That was a good start, but I would have been more specific.. made fun of my weight or something like that.

[Fritz]

Originally posted by Samdari
You're not married, are you?

clapclapclap

[sabotai]

"That was a good start, but I would have been more specific.. made fun of my weight or something like that."

Shut the fuck up you fat fuck!!

[CamEdwards]

hmmmm... better, but still not there yet.

On a more serious note, what does everyone think of Frist's backing of a constitutional amendment to ban homosexual marriages? I don't think it's going to happen, but I'm still trying to decide how it's going to fail: not getting 3/4 of the states to approve the measure, or the House or Senate not passing it with a 2/3 majority.

I'm guessing it doesn't even get out of the House.

[sabotai]

"hmmmm... better, but still not there yet."

Pfft, typical fucking conservative. Nothing's ever good enough for you! Take you hypocritical republican fat ass back to the fucking trailor park where you were spawned. Fuckin' white trash...

[CamEdwards]

Originally posted by sabotai
"hmmmm... better, but still not there yet."

Pfft, typical fucking conservative. Nothing's ever good enough for you! Take you hypocritical republican fat ass back to the fucking trailor park where you were spawned. Fuckin' white trash...

It's "your".

Just for future reference.

Now, play nice. Remember, you're supposed to be tolerant of others.

[JPhillips]

I really hope we don't add a Constitutional Amendment re marriage. I don't think gays should be allowed to marry as that has very specific religious implications, but I do favor a civil union law or something similar. I think we should encourage stability and monogamy in the gay community. A constitutional amendment would be an appalling testament to bigotry and fear. There has to be a better alternative.

[CamEdwards]

thanks JPhillips. I would have actually posted this in Husker-for-Life's thread... but I automatically assume every one of his postings is about TCY2 so I didn't read it.