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Polonius wrote: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.

*sigh*

Lawrence doesn't deal with fundamental rights.

Polonius wrote:What harm?

The harm of an immoral society. Is there a specific, individualized harm? Nope.

Polonius wrote: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?

It makes society more sexually permissive.

Also, if you look at the history of prohibitions on sodomy, they weren't often prosecuted, because the willing accomplice was a co-conspirator, and therefore not available as a witness. The laws were used to punish instances of non-consentual sodomy.

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

Originalism should include some element of textualism. I didn't mean to separate the two, but rather intended a combination.

Polonius wrote: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 agree that they're unlikely to result. But the effects I suggested shouldn't come to pass because they're outside the authority of the Court, not because we have a benevolent Court that wouldn't decide these things.

It's like the so-called "broccoli objection" to Obamacare. That is, if Congress can pass a mandate, they can force you to eat broccoli. The problem isn't that Congress will at some point force you to eat broccoli, the problem is that the decision gives Congress the power to force you to eat broccoli.

And forgive me for going overly Conservative, but I don't like the idea of a government of unlimited powers.

Polonius wrote: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?

We're going back to the point where we're arguing about specific cases, which I don't think is going to advance anything. Like I said, prostitution, animal cruelty, obscenity, etc. are all laws that are grounded in morality rather than a rational state interest.

Polonius wrote: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).

Except at the time, homosexual sodomy was found immoral by a majority.

But that's irrelvant, because the majority should not be able to decide the scope of Constitutional rights. Assuming there's a fundamental right to homosexual sodomy today, then there must have been a right to homosexual sodomy 100 years ago (or even 30 years ago). The fact that rights have 'evolved' over time is troubling.

biccat wrote:

Polonius wrote:What harm?

The harm of an immoral society. Is there a specific, individualized harm? Nope. ...It makes society more sexually permissive.

There is no measurable harm, but it's still harmful?

biccat wrote:
Lawrence doesn't deal with fundamental rights.

Sorry. Part of the libererties protected by substantive due process then.

The harm of an immoral society. Is there a specific, individualized harm? Nope.

What is the harm of an immoral society?

It makes society more sexually permissive.

Also, if you look at the history of prohibitions on sodomy, they weren't often prosecuted, because the willing accomplice was a co-conspirator, and therefore not available as a witness. The laws were used to punish instances of non-consentual sodomy.

How is a sexually permissive society harmful? There is evidence that the relaxing of sexual taboos has had a positive impact on many people.

Non-consenual sodomy would be rape in ohio. I dont know why any other state would need to ban a practice in it's entirety to prevent the non-consensual instances.

Originalism should include some element of textualism. I didn't mean to separate the two, but rather intended a combination.

Fair enough. I'd also defined originalism as inherently including the text, but it's the same difference.

I agree that they're unlikely to result. But the effects I suggested shouldn't come to pass because they're outside the authority of the Court, not because we have a benevolent Court that wouldn't decide these things.

I agree, but that's just the nature of a court. They can decide what they want, and absent an amendment, there's not much that can be done.

It's like the so-called "broccoli objection" to Obamacare. That is, if Congress can pass a mandate, they can force you to eat broccoli. The problem isn't that Congress will at some point force you to eat broccoli, the problem is that the decision gives Congress the power to force you to eat broccoli.

I'm not a constitutional scholar, but wouldn't a tax on every person, with a matching deduction if covered by health insurance, accomplish the same thing and be legal? Per Capita taxes are legal, and congress can spend as it sees fit.

And forgive me for going overly Conservative, but I don't like the idea of a government of unlimited powers.

Who does?

We're going back to the point where we're arguing about specific cases, which I don't think is going to advance anything. Like I said, prostitution, animal cruelty, obscenity, etc. are all laws that are grounded in morality rather than a rational state interest.

Most criminal law is grounded in morality. But that morality is based on a reason: prostituion is bad because it has these effects, etc.

Your argument seems to be that think the Court will simply strike down any law it doesn't like. Which it always has the threat of doing. You're making two big leaps though: 1) that the Court won't actually find legitimate state interests outside of morality, and 2) that those rationales don't exist. Murder isn't just illegal because we think it's wrong, it's illegal because we think that people have a right to their life, and you shouldn't take it away. That's one extreme. Sodomy is at the other end, where there's a sort of vague "people just shouldn't do that" reason. Most laws fall closer to murder, in that there is another right at stake.

Sodomy laws are a pretty unique case. They criminialize a behavior with no victim, no social cost, and a decidedly mixed social acceptance.

Except at the time, homosexual sodomy was found immoral by a majority.

But that's irrelvant, because the majority should not be able to decide the scope of Constitutional rights. Assuming there's a fundamental right to homosexual sodomy today, then there must have been a right to homosexual sodomy 100 years ago (or even 30 years ago). The fact that rights have 'evolved' over time is troubling.

Well, don't spend too much time reading first amendment law. Those rights have evolved tremendously the last 100 years.

I don't think that the right to homosexual sex has evolved, but I think our idea of how the state's legitimate interest applies has changed. 30 years ago, there was still plenty of legitimate, scientific concern about the effects of homosexuality. Much (although not all) of that has changed.

Hell, even look at anti-miscegination laws. 100 years ago you could find scientists, experts in their field, that would testify that interracial marriage would lead to racial weakness. We know that's not true anymore. Facts can change.

The other problem with the law in Lawrence is that it prohibits all sodomy. iHow many people really find oral sex between heterosexual couples immoral? What's the state interest in prohibiting me from going down on a girl?

If we wanted to get interesting, you could see what would happen if a state passed a law saying that all acts of sodomy must use barrier protection (condom or dental dam), on the grounds that it's more likely to spread disease. Include an exception for married couples. I bet that would pass muster.

biccat wrote:

Polonius wrote: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?

It makes society more sexually permissive.

What's wrong with that?

WARBOSS TZOO wrote:

biccat wrote:

Polonius wrote:What harm?

The harm of an immoral society. Is there a specific, individualized harm? Nope. ...It makes society more sexually permissive.

There is no measurable harm, but it's still harmful?

I'm hesitant to put words in biccat's mouth, but I'm getting the impression that he feels that non-procreative sex (or perhaps just non-vaginal sex) is inherently wrong, and should be prohibited.

I had a conversation with a friend once about why homosexuality was actually bad, and it lead to a chain of "well it leads to..." situations that in the end, resulted in "confusing kids about gender roles." I asked why that was bad, and he looked at me like I had asked why gangrene was bad.

My view on this is that if you can articulate a reason why something is bad, or harmful, or a problem, than there's no problem in restricting it (aside from other rights). If, however, something is bad simply because it's different and abnormal, but for no other reason.... well I think it shoudl be allowed.

Polonius wrote:The other problem with the law in Lawrence is that it prohibits all sodomy. iHow many people really find oral sex between heterosexual couples immoral? What's the state interest in prohibiting me from going down on a girl?

It didn't.

"The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct."

Polonius wrote:If we wanted to get interesting, you could see what would happen if a state passed a law saying that all acts of sodomy must use barrier protection (condom or dental dam), on the grounds that it's more likely to spread disease. Include an exception for married couples. I bet that would pass muster.

Actually, I'll bet it wouldn't. The right to use "contraception" is a fundamental right. I'm pretty sure barrier protection for sodomy would fall under this limitation.

Besides, if sodomy is more likely to spread disease, shouldn't that be sufficient rational basis (beyond morality) to ban sodomy?

Also, the harm in immoral acts on a society is that you get an immoral society. If a majority of people think you shouldn't be able to walk around naked, then they should be able to live in a society that prohibits such conduct. Despite such actions not causing any harm, except by offense.

biccat wrote:Also, the harm in immoral acts on a society is that you get an immoral society.

By whose standards?

biccat wrote:If a majority of people think you shouldn't be able to walk around naked, then they should be able to live in a society that prohibits such conduct. Despite such actions not causing any harm, except by offense.

Are we to govern by poll?

Biccat/Polonius no more sighs or other slants please. You're carrying on a reaonable conversation and I don't want that to slide downwards.

biccat wrote:

Polonius wrote:The other problem with the law in Lawrence is that it prohibits all sodomy. iHow many people really find oral sex between heterosexual couples immoral? What's the state interest in prohibiting me from going down on a girl?

It didn't.

"The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct."

yeah, but O'connor I think did a pretty good explaining why that statute is particular wouldn't pass equal protection muster. You can't have something be a crime when done by a guy, but not be a girl. So the real issue is sodomy as a whole, which is pretty broad.

Actually, I'll bet it wouldn't. The right to use "contraception" is a fundamental right. I'm pretty sure barrier protection for sodomy would fall under this limitation.

Besides, if sodomy is more likely to spread disease, shouldn't that be sufficient rational basis (beyond morality) to ban sodomy?

Contraception is a right because it involves procration, which is a right. Barrier protection for disease prevention would not fall under that category.

Banning sodomy based on disease prevention would be an interesting angle. I think if the court applies a "rational basis with bite" standard, you'd need to show some actual reason for the decision. So, banning oral sex, but not vaginal, would be tough. Banning anal sex might work out. The problem is that the court seems to view sex as part of substantive due process, so you can't be overly broad. Banning all anal sex, even between married couples, due to disease prevention would seem to run counter to that standard. I would love to see the state legislator that decides to try to ban oral sex though...

Also, the harm in immoral acts on a society is that you get an immoral society. If a majority of people think you shouldn't be able to walk around naked, then they should be able to live in a society that prohibits such conduct. Despite such actions not causing any harm, except by offense.

Again, what is the harm in an immoral society? I'm curious where you'd go with this that doesn't involve slippery slope.

Well, why do people think we shouldn't be able to walk around naked? Is it because being naked in public is immoral? Or is it because we don't want to have children exposed to nudity, and it would be distracting, and people are likely to be bothered by having to deal with naked people all the time? In other words, there is a harm to others.

I have no problem with people walking around naked. I just dont' really want to deal with it. Is walking around naked in a nudist resort immoral? What about in your own home? Yet even I think it's immoral to walk naked at a playground.


Automatically Appended Next Post:
The underlying rational behind criminal law is that certain acts harm society, either by individuals or as a whole. This is why criminal proceedings are "People" v. Defendent, not the victim.

I think that crimes should have some, identifiable if not measurable, harm to qualify.

This is one reason sodomy used to be a crime: people thought it weakened family life, and it lead to all kinds of madness, etc. We know it doesn't anymore.

On the reverse, certain things, while harmful, can't be criminilized because of protected rights. It's harmful to write and publish books explaining why Catholics are secretly satanists, but I have the right under the first amendment.

There are balancing tests. I have the right to use my prioperty as I wish, but the city has the authority to tell me to cut my grass. It's a weak right, and so they only need a weak reason. I have the right to practice religion, but the government has the right to prohibit human sacrifice. Strong right, even stronger reason.

Right to buggery vs. right to stop disease? Tough call, although I'd imagine the court would see through the pretext.

It's fun to jump to the last page and see what complex arguments a few people are sill carrying on.

And forgive my ignorance, but wouldn't banning sodomy for the prevention of the spread of disease be counterintuitive, as you can get an STI from oral or vaginal sex too?

Se what it seems to be is that it is like the social edge right now. But many people are seeing that their is nothing wrong with gay people of any gender. So give it a few years and people will come around to the idea. Once it becomes a major thing in the eyes of the people the government can only prolong what they want for so long.

micahaphone wrote:It's fun to jump to the last page and see what complex arguments a few people are sill carrying on.

And forgive my ignorance, but wouldn't banning sodomy for the prevention of the spread of disease be counterintuitive, as you can get an STI from oral or vaginal sex too?

To pass Rational Basis muster, a law doesn't have to make total sense, it just needs to make some sense.

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

Polonius wrote:

micahaphone wrote:It's fun to jump to the last page and see what complex arguments a few people are sill carrying on.

And forgive my ignorance, but wouldn't banning sodomy for the prevention of the spread of disease be counterintuitive, as you can get an STI from oral or vaginal sex too?

To pass Rational Basis muster, a law doesn't have to make total sense, it just needs to make some sense.

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

That makes sense. But couldn't such a ruling be overturned in a court if the judge/jury listened to logic?

micahaphone wrote:

Polonius wrote:

micahaphone wrote:It's fun to jump to the last page and see what complex arguments a few people are sill carrying on.

And forgive my ignorance, but wouldn't banning sodomy for the prevention of the spread of disease be counterintuitive, as you can get an STI from oral or vaginal sex too?

To pass Rational Basis muster, a law doesn't have to make total sense, it just needs to make some sense.

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

That makes sense. But couldn't such a ruling be overturned in a court if the judge/jury listened to logic?

i'm not sure you completely understand things. Rulings of law are made by a judge, never by a jury. Juries decide facts.

Basically, if a state decided to ban margarine, because it wants people to consume less hydrogenated vegetable oil, it could. It doesn't need a particularly good reason, just a non-arbitrary one.

biccat wrote:
Also, the harm in immoral acts on a society is that you get an immoral society.

Then all society is fundamentally immoral, as no legislation will serve to isolate immoral activity from society.

biccat wrote:If a majority of people think you shouldn't be able to walk around naked, then they should be able to live in a society that prohibits such conduct. Despite such actions not causing any harm, except by offense.

There are college students in California who do this. The only problem? If they get an erection while on college campus, it can be seen as sexual harassment.

I remember seeing this years ago, so I do not know if it is still legal to do. This isn't a subject I normally keep on the back of my mind, ya know, lol.

I support gay marriages. Hell, the less back-water, white trash homo-hating bigots in my neighborhood (I live in Florida... they are everywhere), the better. I bet if everyone in my neighborhood were all women and/or gay men, the crime rate would drop to, um zero. Everything would be better. The food. The clothing. The politics. Everything.

biccat wrote: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%).

Except you've forgotten, or were never aware of, the fact that assets aren't split 50/50 automatically in normal divorce proceedings, but instead the focus is on overall equality, that also considers what each party brought to the marriage, how the marriage's assets grew in value over the course of the marriage, and how any division will leave the different parties after the divorce... and that different priorities are given to each in different jurisdictions.

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).

Except you've forgotten, or were never aware of, the fact that the primary concern of the courts in child custody isn't who gets ownership by dint of genetics, but what is best for the welfare of the child.

What you've demonstrated above is how simply you might resolve an issue, if you ignore current legal practices, the fact that other people will have very different views, and the nature of real life to introduce all kinds of complexities.

Thinking that you could take the complexity of divorce and add in a third party and not end up with a much more complicated arrangement is very odd. Even if you personally believe that you've got such a profound insight into divorce proceedings that you could write laws and build precedent that ensures equitable divorce for marriages including three or more people, you have to recognise that the vast majority of us do not have that insight nor that level of confidence.

At which point you have to realise that most people can oppose bigamy on grounds of legal practicality, having nothing to do with a purely moral dislike.

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

In the way the law approaches the issue, not really. And that's the point in the context of this discussion.

Except you've forgotten, or were never aware of, the fact that assets aren't split 50/50 automatically in normal divorce proceedings, but instead the focus is on overall equality, that also considers what each party brought to the marriage, how the marriage's assets grew in value over the course of the marriage, and how any division will leave the different parties after the divorce... and that different priorities are given to each in different jurisdictions.

Thats not accurate, or more properly that depends on the jurisdiction. Aussie follows British law which has its rules. In the US, the states follow different rule sets, and time has evolved different customs. For example, California's and Texas' law was originally based on Spanish principles which can be quite different. Louisiana is based on Napoleonic code. All these have evolved over time with new case law or state legislation.

sebster wrote:Except you've forgotten, or were never aware of, the fact that the primary concern of the courts in child custody isn't who gets ownership by dint of genetics, but what is best for the welfare of the child.

No...just...

This is so wrong that I'm not even sure how to respond to it. Standing is probably a good place for you to start educating yourself on the issue.

Look, please try to stick to topics that you at least have some idea what you're talking about.

Don't pretend you know anything about law, because obviously you don't.

A reminder language people. If you're going to post lets be polite about the other party. I've grown tired of the attacks between posters in this section of the board and Dakka Rule #1 is going to be enforced more appropriately.
To Biccat's statement, yes child custody does revolve around the interests of the child, at least technically, at least in Texas.

Frazzled wrote:To Biccat's statement, yes child custody does revolve around the interests of the child, at least technically, at least in Texas.

The best interests of the child doesn't mean the court gives the kid to the best looking guy off the street.

This doesn't happen.

biccat wrote:

Frazzled wrote:To Biccat's statement, yes child custody does revolve around the interests of the child, at least technically, at least in Texas.

The best interests of the child doesn't mean the court gives the kid to the best looking guy off the street.

This doesn't happen.

No gak sherlock, but you're both making absolute statements like they are, well absolute.
Sebster's an Aussie. His rule of law is completely different. Trial By Drop Bear, for example, is not a common method of Appeal in Texas. Inversely, I don't think women inn Australia have access to the "he needed killin' your honor" wive's defense commonly employed here.

Your rule of law is completely different and you know it or should. States have different rules of procedure, driven by different legislation and different case law.
Further in the realm of family law, at least in the US there are No absolutes.

Frazzled wrote:

Except you've forgotten, or were never aware of, the fact that assets aren't split 50/50 automatically in normal divorce proceedings, but instead the focus is on overall equality, that also considers what each party brought to the marriage, how the marriage's assets grew in value over the course of the marriage, and how any division will leave the different parties after the divorce... and that different priorities are given to each in different jurisdictions.

Thats not accurate, or more properly that depends on the jurisdiction.

Yeah, I said "that different priorities are given to each in different jurisdictions". I probably gave too much weight to listing priorities, and too little to the idea of things varying by jurisdiction, so fair point.

But that only really increases the idea that divorce is complicated enough, without courts having to adapt all those considerations to three or more people marriages.


Automatically Appended Next Post:

biccat wrote:The best interests of the child doesn't mean the court gives the kid to the best looking guy off the street.

Who said that? Stop being silly and try actually debating the argument that's been presented.

sebster wrote:

biccat wrote:The best interests of the child doesn't mean the court gives the kid to the best looking guy off the street.

Who said that? Stop being silly and try actually debating the argument that's been presented.

I would be willing to debate the issue, but you've made it clear that you really don't know what you're talking about. And you're not actually presenting counter arguments, you're just being insulting.

Just because you don't understand how a legal principle works doesn't mean that no one understands how it works. Simply because you can't understand how divorce and child custody work (or would work) in a polygamous relationship, doesn't mean that the same principles would not work.

sebster wrote:Except you've forgotten, or were never aware of, the fact that assets aren't split 50/50 automatically in normal divorce proceedings

I am aware of this fact. But you've forgotten, or were never aware of, the fact that a 50/50 split is the presumptive starting position in a divorce proceeding. The court may, according to facts presented and applying a legal test balancing the interests of the parties, modify this starting position.

Regardless, the presumptive starting position in a divorce proceeding between H and W1 (since you haven't made your example clear) would be 33/33 of the marital assets (for those assets held in common in the marriage). Any assets held in common solely between H and W1 would be presumed to be 50/50.

The law has procedures for dealing with these issues. This would not be an issue of first impression. Since you're so fond of defining a marriage as a contract, the H-W1-W2 relationship could easily be treated as a partnership with all three being equal partners.

sebster wrote:Except you've forgotten, or were never aware of, the fact that the primary concern of the courts in child custody isn't who gets ownership by dint of genetics, but what is best for the welfare of the child.

Except you've forgotten, or were never aware of, the fact that in order to even get to contest child custody, one must have standing. This means (basically) that you have an interest in the child that bears protecting. Non-parents (and I'm using the legal term here) have a heavy burden to show that they have an interest in raising the child. Generally this means that they have some deep emotional attachment or history of caring for the child as a parent.

If H and W1 get divorced, then the child custody dispute is between H and W1. W2 may be able to meet the high standard and establish that she has a parental relationship with the child, but as long as she's married to H, a court would likely conclude that her interest is already sufficiently protected by H's presence in the suit (that is, when he gets the kid, she will be presumed to have access to the kid).

This situation is no different than a custody dispute between a mother and her new husband who have been raising a child and her ex-husband who is asking for visitation rights (or h-w-xw).

These issues branch out in increasing complexity when you have more than 2 wives (or husbands) and/or more than 1 divorce at a time, but they don't increase in difficulty.

This thread is closed.