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Polonius wrote:If you're point is that the Court does a lot of hand waving when it really wants to overturn laws it doesn't like, than I wholly agree. Other than that, I'm not sure what you're arguing.

My point is, if you ignore the handwaving and interpret Lawrence as a legitimate opinion as far as stare decisis is concerned, laws such as anti-obscenity and laws limiting marriage to a man and a woman should be struck down.

In short, morality is insufficient, even under rational basis, to support the constitutionality of a law. This is a problem.

biccat wrote:

Polonius wrote:If you're point is that the Court does a lot of hand waving when it really wants to overturn laws it doesn't like, than I wholly agree. Other than that, I'm not sure what you're arguing.

My point is, if you ignore the handwaving and interpret Lawrence as a legitimate opinion as far as stare decisis is concerned, laws such as anti-obscenity and laws limiting marriage to a man and a woman should be struck down.

In short, morality is insufficient, even under rational basis, to support the constitutionality of a law. This is a problem.

Don't make the mistake of confusing analysis with the holding of a case. The holding was:
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "

The stuff about morality wasn't the holding of the case. It certainly hasn't been used as precedent, that I'm aware of.

And, as I've stated, it's not hard to come up with a non-moral reason for only approving heterosexual marriages. Propagation of children is one of them.

On an aside, maybe I'm missing something, but if there is no reason for a law other than "morality," than maybe it really shouldn't be a law, you know? I mean, if nobody is hurt, and nothing bad happens, why make it illegal?

Polonius wrote:Don't make the mistake of confusing analysis with the holding of a case. The holding was:
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "

I'm not confusing the holding with the analysis.

"JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here." It's hard to argue that this wasn't the reasoning for the court reaching its decision.

Although, if you really want to be pedantic, the specific holding of the case was "The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

biccat wrote:

Polonius wrote:Don't make the mistake of confusing analysis with the holding of a case. The holding was:
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "

I'm not confusing the holding with the analysis.

"JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here." It's hard to argue that this wasn't the reasoning for the court reaching its decision.

Which is why I'm not. The analysis was used to reach it's decision. The analysis wasn't the decision.

Even so, you can't cherry pick one clause and run with it. The original paragraph from Bowers:
"First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. [Footnote 4/9] Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by unmarried, as well as married, persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972). "

Does not disallow prohibiting things that are immoral, merely those things that are viewed as immoral. Also, you need to have a reason to challenge a law. His point is that if there is some right being infringed, the state can't simply say "well, it's always been bad."

Although, if you really want to be pedantic, the specific holding of the case was "The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

Not quite. It's actually the order. A legal holding is the courts determination on a matter of law. Many lawyers have tried to expand holdings far out of proportion. It seldom ends well.

Polonius wrote:Not quite. It's actually the order. A legal holding is the courts determination on a matter of law. Many lawyers have tried to expand holdings far out of proportion. It seldom ends well.

If you ask 100 different lawyers the holding of a case, you will get 99 different answers.

Assuming one of them is an associate.

biccat wrote:

Polonius wrote:Not quite. It's actually the order. A legal holding is the courts determination on a matter of law. Many lawyers have tried to expand holdings far out of proportion. It seldom ends well.

If you ask 100 different lawyers the holding of a case, you will get 99 different answers.

Assuming one of them is an associate.

Ask a 100 lawyers that do appellate work what they'd argue to a court what the holding a case is, and you'll get far fewer answers. I'm not sure if you're comment is based on anything other than a deep rooted cynicism on the legal system, because these areas aren't as unsettled as you seem to think.

I'm also assuming that since you keep avoiding my points in order to argue tangential issues that you're more or less giving up on those. which is a shame, because I think you have some interesting ideas,

Polonius wrote:

biccat wrote:

Polonius wrote:Not quite. It's actually the order. A legal holding is the courts determination on a matter of law. Many lawyers have tried to expand holdings far out of proportion. It seldom ends well.

If you ask 100 different lawyers the holding of a case, you will get 99 different answers.

Assuming one of them is an associate.

Ask a 100 lawyers that do appellate work what they'd argue to a court what the holding a case is, and you'll get far fewer answers. I'm not sure if you're comment is based on anything other than a deep rooted cynicism on the legal system, because these areas aren't as unsettled as you seem to think.

I'm also assuming that since you keep avoiding my points in order to argue tangential issues that you're more or less giving up on those. which is a shame, because I think you have some interesting ideas,

I'm not sure which points you think I've been ignoring.

Well, pretty much all of my discussion on the ramifications on a holding that morality is insufficient to uphold a law.

I guess in general you've been responding to one point I make, and not to the entire post.

Kilkrazy wrote:The Marriage Act 1961 (Australia)

These show that there is primary legislation on the topic. Importantly, the 1753 Act replaced the kind of Common Law marriage that had previously been practiced.

This Act in particular is the one we are currently studying.

When I was talking about Case Law, I was reffering to precedent set by Cohen v Stellar in regards to engagement gifts and how these worked like a contract.

It really is a fascinating case, and (having been decided in 1923) the judge was having difficulty with asserting that marriage (especially the engagement gifts beforehand) should at like a contract. Beforehand such issues were almost solely a matter for the church.

Cheesecat wrote:Isn't that Libertarianism not liberalism?

No, it isn't. Liberal has multiple meanings. When used in the context of liberal democracy it has a very specific, technical meaning.

You can read about it if you want, the wiki entry isn't great but it's a start;

http://en.wikipedia.org/wiki/Liberal_democracy


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biccat wrote:Polygamy has been going on for a long, long time before the United States was even a twinkle in Thomas Jefferson's eye. These issues are not new, and are easily overcome.

Then solve it. Come on. Explain how courts are to decide property and child access in the event of a divorce between one man and two women.

Also, do you understand what bigamy is? Because four wives and six husbands is not bigamy.

Yes. Did you follow the logical end position of your very silly claim about bigamy, why not polygamy and polyamory?

This is a moral argument. There's no rational, amoral reason to suggest that children under 18 can't grant consent.

It's not a moral argument. It's a rational position drawn from our ideas of contract, and who is capable of entering in to such a contract and who is not.

Something tells me you've never really read anything about how morality and reason can interact, and seem to have wandered into this thread thinking the two are completely seperate from each other.


Automatically Appended Next Post:

Emperors Faithful wrote:The idea of marriage as a contract and nothing else is a relatively new idea in law, and (to be honest) not one I'm entirely comfortable with.

In terms of the law, marriage has always been a contract and nothing else. Any religious trappings the couples wants to place on it has always been irrelevant to how the marriage is dealt with in a court of law.

Polonius wrote:Well, pretty much all of my discussion on the ramifications on a holding that morality is insufficient to uphold a law.

I guess in general you've been responding to one point I make, and not to the entire post.

Well, I apologize for not addressing it. The only place I had seen you make that argument was in an edit which was after I had clicked "quote". So again, sorry for missing it.

I think that the use of morality to create law is a policy decision and not a Constitutional one.

sebster wrote:Then solve it. Come on. Explain how courts are to decide property and child access in the event of a divorce between one man and two women.

First, you would have to explain what the status of the marriage is. Is the husband married to each of the women? Are the women married to each other? Marriage is essentially (although it isn't) a contract. This requires two people. So in the example you suggest, there would have to be at least two marriages (possibly three). H to W1 and H to W2.

Assuming this as the simple case, then we have to turn to what is meant by "divorce." Is the husband divorcing one of the wives or both of them? I'll assume that there is only one divorce - between H and W1.

On the division of property, case law assumes that a husband and wife contribute equally to the wealth of the household. There are, therefore, two possible situations:
each wife & husband pair contributes equally (H gets 50%, W1 gets 25%, W2 gets 25%).
everyone contributes equally to the 'family unit' (H gets 33%, W1 gets 33%, W2 gets 33%).

Equity would suggest that H shouldn't be counted twice for no additional work, so option 2 is best, although a policy argument can be made for either. When H and W1 break it off, H and W2 get 66% of the assets and W1 gets 33% of the assets.

On child custody, it's even easier. Parental rights are inherent in the biological father and mother. If H and W1 get divorced, there's no custodial issue regarding W2's children. If the issue is custody of W1's children, then it's resolved exactly as it is today (that is, very poorly).

sebster wrote:In terms of the law, marriage has always been a contract and nothing else. Any religious trappings the couples wants to place on it has always been irrelevant to how the marriage is dealt with in a court of law.

It's a "marriage contract," not a contract. There is a substantial difference.

Contracts require a minimum of two contracting parties and this is the most common form of contract seen, however it is not a legal limit, and there is no reason in principal why a contract of marriage should not be formed between three or more people.

Other than bigamy laws, of course.

Kilkrazy wrote:Contracts require a minimum of two contracting parties and this is the most common form of contract seen, however it is not a legal limit, and there is no reason in principal why a contract of marriage should not be formed between three or more people.

Other than bigamy laws, of course.

Bigamy laws generally read "no married person shall marry another person," and presume a two-party marriage.

biccat wrote:I think that the use of morality to create law is a policy decision and not a Constitutional one.

I'm not sure entirely what you mean. Are you saying that morality should be used, even if it would conflict with a constitutional right?

Morality can be a basis for laws, it happens all the time. It conly because a constitutional issue when the morality conflicts with the constitution.

So, regulating prostitution on moral grounds is probably ok. Regulating pornography on moral grounds runs into 1st amendment issues.

Banning pork because red meat is unhealthy is ok. banning pork because pig farming is cruel is probably ok. Banning pork because it's not Kosherwould not be, as it runs counter to the establishment clause.

SCOTUS, for the last 70 years or so, has consistently not allowed morality to trump constitutional rights.

Emperors Faithful wrote:

Kilkrazy wrote:The Marriage Act 1961 (Australia)

These show that there is primary legislation on the topic. Importantly, the 1753 Act replaced the kind of Common Law marriage that had previously been practiced.

This Act in particular is the one we are currently studying.

When I was talking about Case Law, I was reffering to precedent set by Cohen v Stellar in regards to engagement gifts and how these worked like a contract.

It really is a fascinating case, and (having been decided in 1923) the judge was having difficulty with asserting that marriage (especially the engagement gifts beforehand) should at like a contract. Beforehand such issues were almost solely a matter for the church.

Breach of Promise is a common theme in Victorian Era comic theatre, however by the early 20th century its significance had faded.

The government of England has been issuing Acts relating to marriages since at least 1235, so there is substantial statue law on the topic separate to common law and church law.

I"m not sure how much I'd call marriage a contract. The agreement to get married is very much a contract (which is why I have an engagment ring in a saftey deposit box), but marriage is a recognitiion that two people have become family.

It has broad affects across many areas of government. you can't otherwise contract for a person you know to recieve widow(er)'s benefits, or to file your taxes with as a married couple (although head of household fills some of that).

A big chunk of the benefits of marriage can be gained through other legal avenues: wills, power of attorney, etc. But there are a lot that cannot. Marriage has a lot of benefits (and costs) that all come at once.

Polonius wrote:So, regulating prostitution on moral grounds is probably ok.

How is this OK? If there's a right to engage in private consentual sex (as you're suggesting is the holding of Lawrence), then you're trumping that right by outlawing prostitution.

Polonius wrote:Banning pork because red meat is unhealthy is ok. banning pork because pig farming is cruel is probably ok. Banning pork because it's not Kosherwould not be, as it runs counter to the establishment clause.

Only under the Lemon test. Which has it's own problems. For example, if you ban pork because pig farming is cruel and because pork is not Kosher, the law would be struck down. Even mentioning Kosher laws during congressional debate would be enough to get the law struck under Lemon.

Polonius wrote:SCOTUS, for the last 70 years or so, has consistently not allowed morality to trump constitutional rights.

You will have to be clearer what you mean about "constitutional rights." I assume you have some amount of legal education, and therefore understand that constitutional rights are not absolute but rather, laws limiting rights guaranteed by the Constitution are analyzed based on varying levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis.

Morality should be sufficient to satisfy a rational basis for a law. Therefore, laws discriminating against non-suspect classes (which currently includes sexual orientation) should be sustained even if the only reason for the discrimination is morality.

biccat wrote:

Polonius wrote:So, regulating prostitution on moral grounds is probably ok.

How is this OK? If there's a right to engage in private consentual sex (as you're suggesting is the holding of Lawrence), then you're trumping that right by outlawing prostitution.

It's an interesting argument, and one that I'm sure has been attempted. I would imagine prostitution would be distinguished based on being neither private (money changed hands) and oftentimes not completely consensual. It's a hairline distinction, but it can be distinguished. Prostitution also has ramifications on the community, spreads disease, and encourages sex slavery. Consensual sodomy doesn't (few sodomites are promiscous enough to spread disease as much as a pro.)

Polonius wrote:Banning pork because red meat is unhealthy is ok. banning pork because pig farming is cruel is probably ok. Banning pork because it's not Kosherwould not be, as it runs counter to the establishment clause.

Only under the Lemon test. Which has it's own problems. For example, if you ban pork because pig farming is cruel and because pork is not Kosher, the law would be struck down. Even mentioning Kosher laws during congressional debate would be enough to get the law struck under Lemon.

The pork example is weak, because no state would do that. I think you're overstating the impact of the Lemon test. If lemon had the power you state, than gay marriage bans in nearly every state would be struck down, as somebody mentioned religion in nearly every debate. Also, if a state said "we are passing a law to make the laws of Torah binding" you wouldn't need the Lemon test to strick it down: that's plainly establishing religion. Lemon is used when a religion is benefitted, but the actual affect was secular.

Polonius wrote:SCOTUS, for the last 70 years or so, has consistently not allowed morality to trump constitutional rights.

You will have to be clearer what you mean about "constitutional rights." I assume you have some amount of legal education, and therefore understand that constitutional rights are not absolute but rather, laws limiting rights guaranteed by the Constitution are analyzed based on varying levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis.

I remember some of that from law school, yeah.

There plenty of different level of scrutiny. When you look at first amendment law, things get really fuzzy.

Morality should be sufficient to satisfy a rational basis for a law. Therefore, laws discriminating against non-suspect classes (which currently includes sexual orientation) should be sustained even if the only reason for the discrimination is morality.

Which they are. When aren't they?

Equal protection is only one way a law can be struck down, of course. A law that prohibits wearing stupid t-shirts won't be struck down on equal protection (as hipster isn't a protected class), but on first amendment grounds.

Lawrence wasn't decided on equal protection grounds (aside from O'Connors concurring opinion), but on substantive due process grounds.

Polonius wrote:

Morality should be sufficient to satisfy a rational basis for a law. Therefore, laws discriminating against non-suspect classes (which currently includes sexual orientation) should be sustained even if the only reason for the discrimination is morality.

Which they are. When aren't they?

Under a fair reading of Lawrence, which is the point I've been making.

Polonius wrote:Lawrence wasn't decided on equal protection grounds (aside from O'Connors concurring opinion), but on substantive due process grounds.

The court didn't state that there was a fundamental right to engage in sodomy. They overruled the specific result in Bowers, but didn't overrule the rationale that led there.

Somehow, the right to "due process" changed to the right to "liberty."

biccat wrote:

Polonius wrote:

Morality should be sufficient to satisfy a rational basis for a law. Therefore, laws discriminating against non-suspect classes (which currently includes sexual orientation) should be sustained even if the only reason for the discrimination is morality.

Which they are. When aren't they?

Under a fair reading of Lawrence, which is the point I've been making.

So, you're saying that if the courts read Lawrence the same way you do, they would then make future decisions that would rely on faulty analysis. yet they haven't yet, either because they're not reading it correctly, or becasue they've changed their mind.

Of course, it's possible that you're reading their decision incorrectly. I really don't mean to sound impolite, but I think you're seeing something in Lawrence that isn't there, and are now convinced that it is going to overturn laws all over the place. The fact that seven years later it hasn't should show that maybe you're not analysing it properly.

I'm struggling to see what your point actually is, other than you seem to think that Lawrence's holding could lead to soemthing bad.

Polonius wrote:Lawrence wasn't decided on equal protection grounds (aside from O'Connors concurring opinion), but on substantive due process grounds.

The court didn't state that there was a fundamental right to engage in sodomy. They overruled the specific result in Bowers, but didn't overrule the rationale that led there.

Somehow, the right to "due process" changed to the right to "liberty."

taht's what substantive due process is. Yes, it's made up. It's the same rationale for about a half dozen cases on similar lines.

Polonius wrote:So, you're saying that if the courts read Lawrence the same way you do, they would then make future decisions that would rely on faulty analysis. yet they haven't yet, either because they're not reading it correctly, or becasue they've changed their mind.

Of course, it's possible that you're reading their decision incorrectly. I really don't mean to sound impolite, but I think you're seeing something in Lawrence that isn't there, and are now convinced that it is going to overturn laws all over the place. The fact that seven years later it hasn't should show that maybe you're not analysing it properly.

There's no mention in Lawrence that homosexual sodomy is a fundamental right.

"Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Everyone agrees that 'liberty' under the due process clause is expansive. However, substantive due process doesn't care about liberties, it cares about fundamental liberties. The court did not say that sodomy (of any sort) is a fundamental right. I'm not sure why you continue to misinterpret what the court is saying in Lawrence.

"The Texas statute furthers no legitimate state interest"
This is the language of the rational basis test. The rational basis test doesn't apply to substantive due process. If this is a substantive due process case, why is the court applying the rational basis test?

Polonius wrote:I'm struggling to see what your point actually is, other than you seem to think that Lawrence's holding could lead to soemthing bad.

Bad decisions can lead to bad law. I was not aware that this was controversial.

Polonius wrote:

Lawrence wasn't decided on equal protection grounds (aside from O'Connors concurring opinion), but on substantive due process grounds.

The court didn't state that there was a fundamental right to engage in sodomy. They overruled the specific result in Bowers, but didn't overrule the rationale that led there.

Somehow, the right to "due process" changed to the right to "liberty."

taht's what substantive due process is. Yes, it's made up. It's the same rationale for about a half dozen cases on similar lines.

The 14th amendment allows that liberties may be infringed by the state. That's why the court has adopted tests. Line-drawing between those tests requires some differentiation between liberties (that is, the liberty to engage in prostitution).

The court has said that certain rights are fundamental, and therefore subject to a higher level of scrutiny. The court did not say that a fundamental right was implicated in this case.

This isn't a particularly hard case. Kennedy is a good writer and doesn't bury his rationale for deciding the case in the manner he did. I don't see why you're having such a hard time with this.

edit: fixed quote tags.

Ok, fine. I find all of these cases to be suspect in their reasoning, so frankly I didn't spend a lot of time reading every line. I see your point now about the use of rational basis, and then rejecting morality alone.

Rational basis is tricky, because the court rarely overturns anything with it, so when it does, it's assumed that they really used a slightly stricter test. Other thinkers think that the rational basis test is generally too lax. If you're starting to think that supreme court justices decide how a case should come out, and then draft their analysis to support it, you've pretty much hit the nail on the head.

The problem in lawrence is that there is a fundamental right at stake: the right to have private, consensual sexual relations. Now, states regulate that all the time, with laws against incest, or laws regarding age of consent (which I supposed makes it a matter of consent, but nobody has been able to explain why Ohio girls gain the ability to consent two years before girls in California), but those involve some other state interests. What possible state interest was at stake in the sodomy laws? What reason is there for those laws, other than people simply think sodomy is bad?

Again, my question becomes, let's say that the holding of Lawrence is "morality alone is not enough to satisfy a rational basis test."

So what? What laws would be struck down that are so essential?

What laws can a state not come up with some reason outside of "we just dont' like it?"

Rational basis still requires at least some actual reason. I don't see the problem with eliminating "we've always thought it was wrong" as a such a reason.

Polonius wrote:Again, my question becomes, let's say that the holding of Lawrence is "morality alone is not enough to satisfy a rational basis test."

So what? What laws would be struck down that are so essential?

Prostitution, adult incest, obscenity, fornication, beastiality, bigamy, same-sex marriage, obscenity, and that's just the ones in the dissent.

Presumably laws regulating private drug use, animal cruelty, and adult bookstore zoning would likely be struck down.

Polonius wrote:What laws can a state not come up with some reason outside of "we just dont' like it?"

Rational basis still requires at least some actual reason. I don't see the problem with eliminating "we've always thought it was wrong" as a such a reason.

I think public perceptions of morality should be sufficient reason to support a law. The legislature should not have to have additional justification for their decisions unless a fundamental right is implicated (or certain classes of discrimination).

If a specific town outlaws the consumption of pork simply because "pork is bad", that should withstand rational basis review.

edit: I should note that this assumes that the Court (and the lower courts especially) will interpret Lawrence's reasoning as binding precedent, rather than the political theater that it appears to have been.

biccat wrote:

Polonius wrote:Again, my question becomes, let's say that the holding of Lawrence is "morality alone is not enough to satisfy a rational basis test."

So what? What laws would be struck down that are so essential?

Prostitution, adult incest, obscenity, fornication, beastiality, bigamy, same-sex marriage, obscenity, and that's just the ones in the dissent.

Presumably laws regulating private drug use, animal cruelty, and adult bookstore zoning would likely be struck down.

Of course, none of the above have yet, which given the time, means at least something.

Prostitution has problems outside of morality: increased crime, huge potentials for abuse of the women, and the spreading of disease. Those are all legitimate state interests. Of course, I'd argue that prostitution shoudl be legal and regulated, so the laws as such aren't essential. Either ways, they'd survive rational basis.

Obscenity is an interesting category, because there is no inherent right to obscenity, even given free speech. The lawrence analysis wont' apply, because obscenity is by definintion not protected speech. Again, I don't see the problem with allowing obscenity.

Are there still states with fornication laws? I didn't think it was a crime anywhere.

Beasitiality would be banned under the concept of consent. an animal cannot consent.

Bigamy and same sex marriage can be prohibited because the state has a legitimate interest in encouraing family structutes that produce kids and a minimum of hassle.

Private drug use is a tough one, but 1) drugs are unhealthy, and 2) drug use fuels criminal drug trade

Animal cruelty has the word cruelty in the title. Preventing cruelty, even to animals, is a legitimate interest. Tie in the link between animal abuse and eventual violence against humans, and that's easy to pass muster.

Adult bookstore zoning laws are tough because that darned first amendment protects the right to smut. They're on their way out, and you don't need Lawrence to do away with them. The secondary effects docrtine still holds some water though.

Most of those would still pass the Lawrence test. The ones that wouldn't would be fornciation and obscenity, although I fail to see why they should be banned.

Polonius wrote:What laws can a state not come up with some reason outside of "we just dont' like it?"

Rational basis still requires at least some actual reason. I don't see the problem with eliminating "we've always thought it was wrong" as a such a reason.

I think public perceptions of morality should be sufficient reason to support a law. The legislature should not have to have additional justification for their decisions unless a fundamental right is implicated (or certain classes of discrimination).

If a specific town outlaws the consumption of pork simply because "pork is bad", that should withstand rational basis review.

edit: I should note that this assumes that the Court (and the lower courts especially) will interpret Lawrence's reasoning as binding precedent, rather than the political theater that it appears to have been.

Well, no courts are going to interpret the reasonin in lawrence as binding, because courts don't find reasoning to be binding. They find holdings to be binding. Still, even under your interpretation of Lawrence it seems that the only things that are at risk are "victimless" crimes. There seems to be no harm to society from sodomy, fornication, or obscenity other than the fact that many people think those things are immoral.

I mean, I know your problem seems to be that you think that states should be able to legislate morality, particularl a fairly old school puritanical one. And that's a fine philosophy, and arguably even what the founders intended. I agree that the court has stretched the constiution to protect rights it thinks we should have. I'm happy with the result (as I enjoy the hell out of fornication, heterosexual sodomy, and contraception), but I'm worried about the ramifications of having current taste, not the text and it's history, determine our rights.

That said, you're predicting a doomsday scenario that 1) isn't really a doomsday, and 2) won't happen because the facts are different.

OBJECTION!




Am I doing it right?

Albatross wrote:OBJECTION!




Am I doing it right?

You need to give the grounds for your objection.

This is an interesting legal discussion, because the argument that Lawrence (and nearly all similar cases) were poorly decided is pretty hard to refute.

On the other hand, I agree that a state needs to say more than "buttsecks is wrong" to ban it. Laws can't be arbitrary, even if they reflect a majority veiw.

Polonius wrote:

Albatross wrote:OBJECTION!




Am I doing it right?

You need to give the grounds for your objection.

Overruled.

Suffice to say we disagree on the preceding points.

Polonius wrote:Well, no courts are going to interpret the reasonin in lawrence as binding, because courts don't find reasoning to be binding. They find holdings to be binding.

Then you don't understand much about how courts interpret decisions by the SCOTUS. The reasoning is binding because not all cases are the same, and the courts will look to the SCOTUS to determine how to decide a case.

Polonius wrote:Still, even under your interpretation of Lawrence it seems that the only things that are at risk are "victimless" crimes. There seems to be no harm to society from sodomy, fornication, or obscenity other than the fact that many people think those things are immoral.

No harm to individuals, but the purpose of public morality is that there is a harm to society by legalizing immoral acts.

Polonius wrote:I mean, I know your problem seems to be that you think that states should be able to legislate morality, particularl a fairly old school puritanical one. And that's a fine philosophy, and arguably even what the founders intended. I agree that the court has stretched the constiution to protect rights it thinks we should have. I'm happy with the result (as I enjoy the hell out of fornication, heterosexual sodomy, and contraception), but I'm worried about the ramifications of having current taste, not the text and it's history, determine our rights.

I agree with the last point. Which is why I think that the most intellectually consistent position is originalism and textualism.

The problem is, you like the result that the court has given you. But what about when the court recognizes a private right that you don't agree with? Also, do you really think that the sale of contraception would still be illegal absent a Supreme Court decision to the contrary? I think that people probably would have elected representatives to overturn such a law by now.

Polonius wrote:That said, you're predicting a doomsday scenario that 1) isn't really a doomsday, and 2) won't happen because the facts are different.

You can't simply distinguish Lawrence on it's facts. It is a case in the SCOTUS' substantive due process portfolio (maybe) and arguably equal protection, and therefore should be given due consideration.

I haven't Shepardized the case, so I can't comment on how often it's been followed, but it's still a relatively young case.


Automatically Appended Next Post:

Polonius wrote:

Albatross wrote:OBJECTION!




Am I doing it right?

You need to give the grounds for your objection.

Just say "OBJECTION, HEARSAY!"

That works for just about anything. And the rest you can strenuously argue until you remember what your objection was supposed to be.

biccat wrote:No harm to individuals, but the purpose of public morality is that there is a harm to society by legalizing immoral acts.

Or by illegalising immoral acts, amirite?

(the joke there is that the war on drugs has done more damage to the united states than drugs ever could have hoped for themselves, and has been utterly ineffective in preventing their spread to boot)

biccat wrote:Then you don't understand much about how courts interpret decisions by the SCOTUS. The reasoning is binding because not all cases are the same, and the courts will look to the SCOTUS to determine how to decide a case.

They are going to look at all of the reasoning, though, not just one tidbit. When a case comes up, they'll decide if there is a fundamental right at issue (such as private consunsual sex), they will then need to decide if there is legitimate state interest. I'm struggling to come up with another example of a case that would be overturned under the lawrence standard, but not any other.

No harm to individuals, but the purpose of public morality is that there is a harm to society by legalizing immoral acts.

What harm? This is going round and round, because you're trying to figure out a way for a state to ban soemthing simply because people think it's wrong, but with no actual negative effects. Lots of things used to be banned because people thought there were negative effects, but these have been cleared up. Hell, homosexuality was seen as a mental illness 50 years ago. So yeah, laws forbidding it made sense, because we didn't want people to be mentally ill.

What harm is done to society to allowing oral and anal sex? I mean, really?

I agree with the last point. Which is why I think that the most intellectually consistent position is originalism and textualism.

textualilsm is a pretty intellecutally shallow stance. originalism is very different, and it's my view, thanks to a brilliant con law professor.

The problem is, you like the result that the court has given you. But what about when the court recognizes a private right that you don't agree with? Also, do you really think that the sale of contraception would still be illegal absent a Supreme Court decision to the contrary? I think that people probably would have elected representatives to overturn such a law by now.

I dont' know. You seem to think that I'm defending Lawrence, when I'm really not. I'm merely trying to explain why the effects you predict based on it are unlikely.

I've, I believe in this exact thread, stated that I don't think it's the role of the courts to decide on gay marriage at the federal level. In a generation, enough states will legalize it, and DOMA will be repealed, and it just won't be a huge issue.

You can't simply distinguish Lawrence on it's facts. It is a case in the SCOTUS' substantive due process portfolio (maybe) and arguably equal protection, and therefore should be given due consideration.

I haven't Shepardized the case, so I can't comment on how often it's been followed, but it's still a relatively young case.

It will be, but there's about one substantive due process case a decade (yoder, griswold, the one after griswold, Roe, Casey, Lawrence) and they tend to be pretty narrow in application.

Facts are how you distinguish cases. I'm not sure how else you distinguish them. I mean, let's say for argument sake that the holding of Lawrence is "morality is not enough to pass rational basis." Aren't private sex acts about the only moral issue left that you can't trace back to another state interest?

Not to sound like a total liberal, but think there's also an establishment clause arugment to be made here. Fundamentally, when we talk about "sexual morality" in terms of things like sodomy, we're really talking about religious tenets. Now, they're deeply laid, and impossible to seperate from our overall culture, but the real reason we as a society feel that sodomy is "wrong" is because1) we've always felt that way, and 2)many of us belong to religions that teach that. Contrast that to say, animal cruelty, where we feel it is wrong because animals have at least the right to not be abused. No traditional or religious morality (that had broad reach in this country) felt that way, we developed that moral though fairly recently.

And that's one word we've overlooked in Steven's analysis "traditionally." By that holding, if something is "currently" still found immoral by a majority, it would pass the Lawrence test (as you've articulated it).