pgabriel, The reason I brought up the abortion issue is that the right to privacy was introduced with Roe v. Wade. We did not have a legal or constitutional right to privacy beforehand. Furthermore, while it is clearly a right supported by law, it is still hotly debated. While many pro-life people argue that the reason a right to privacy should be suspended in the case of abortion has to do with a state having a compelling interest to override privacy to protect a life, there is another popular argument that the right to life is considerably more fundamental than any right to privacy and that the latter should not have been codified in the first place. I suppose your right that my opinion on abortion is not at all relavent or important to this discussion but the subject of the legalization of abortion is relavent. Jeff and pgabriel, The reason I brought up child abuse and drug use/production was not because I think that homosexuality is in the same category. I brought it up to point out that there are a number of things we regulate that occur on private property. Some of them clearly harm others but some of them don't. How is anyone hurt if I smoke a joint in my own livingroom? (That's not an entirely fair question because I think one could argue that it hurts me or that it could effect my children orharm my relationship with people I'm close to. But then, we usually let people do a certain amount of damage to their own lives and the lives of those around them without further recrimination.) More to the point, simply stating that the activity involves consenting adults in their own home is not yet a sufficient reason to keep a law off the books. Perhaps at somepoint in the future it will be. And perhaps people can actively work to change that. PLEASE NOTE: I am not saying homosexual sex is the same (fill in the blank with some activity). What I am trying to discuss is the legitimacy of laws that consider private activity.
the interest of the state is balanced against the privacy interest of the individual..so, yes..they could...but i doubt it would happen anytime soon.
it's always a judgment call...always..in every situation...it's a balance between the individual's rights and the state's compelling interests..in this case, the state lost. i think rightly so.
they did...but we give courts the power to overturn decisions. it's not written a stone tablet like hamurrabi.
Just checking. That's precisely my point. You said just a moment ago that it's not like they rewrite the laws every 15 years. Well here is a prime example of how political persuasions and free reign allow Courts to substitute their ideals for the people's. You just happen to agree with their ideals this time. Next time you might not, but you can't stop them because of this precedent.
Its a totally separate issue. If the state has deemed mar1juana a harmful substance you have no right to have it either in public or in private. What is the basis of preventing two people from having concentual sex. I'm sorry Mrs. JV, I didn't know that was the logic behind abortion being legal.
that's the supreme court!!! yes, they can rewrite their decisions...no they did not legislate in this decision...there is no new law they created. their job is to review laws and check them against the constitution. that's the function required of them in the Constitution. they've been doing this since marbury v. madison!! yes...legislatures are not unfettered...they are not unchecked...they are restricted by review from the courts. if you don't like that, move to a country that has no independent judiciary. good luck with that! as for the ideals, though...do you really believe that i have NO privacy interest in the sexual relationship of me and my wife in our home behind closed doors?? you really think they could outlaw me having sex with my wife, and that wouldn't be a violation of due process???
Well, what if the Court says that the "zone of privacy" is more important than the states interest in taking a hit from a bong? My main problem here is the zone of privacy, not 2 people having sex. If they wanted to argue the state had no compelling interest, they should have just said that and not included privacy (which is how abortion was made legal).
the states' compelling interest is balanced AGAINST the right. if it doesn't affect someone's rights, they have nothing to argue from to begin with...you have to define which rights were interfered with. here, those rights arise from the due process clause which says (in the 14th amendment): "nor shall any State deprive any person of life, liberty or property, without due process of law..."
Legislating from the bench isn't limited to passing new law - it can be just as effectively done by repealing an existing law. And what checks and balances can possibly be in effect for a court who upon their own whim can re-write or eliminate an ancient, unenforced state law. The 'compelling interest' burden is a bunch of BS. As I said earlier, there should be a much more compelling interest in the state's legislating the conduct of their citizens than in the "right" of two men to make out. The whole point was that the legislature was taking care of the problem. The law wasn't even being regularly enforced, and if the gay rights activists kept up their work, the law would be repealed in the other 13 states. This case seems to allow the Court to decide when they need to 'speed up' the legislative process by taking the matter into its own hands. If those who support this decision could separate their emotion and gaiety (pun intended) about how this case advances gay rights long enough, they would realize the much broader ramifications. This Court's limitless boundaries are slowly attempting to turn this republic into a monarchy. It's so politicized that we can't even get a judicial nominee passed without litmus tests and filibustering. It's time to give the power back to the people and energize the legislatures and put the Court back in its place.
i'll just say i strongly disagree and move on.... but keep in mind...i was a member of the Federalist Society in law school...i'd say i'm pretty conservative...and states rights and the federalization of criminal law has been a concern for me for years...i wrote my law school seminar paper on the subject... and i don't see this case as problematic in that regard...take that for whatever it's worth...which probably isn't much.
I find this religious adoration of the constitution profane. A document which forever proclaims a black man's worth as 3/5's of a person and property is blasphemous in the least, since it took a war to amend that.
I just want to say that even though MadMax and I are on the opposite sides of the political spectrum, he has done a truly masterful job explaining basic Constitutional law to everyone here. Good work, and the first drink is on me if we ever run into one another.
I find this attitude profane. Just because it wasn't perfect doesn't mean it wasn't crucial to building a strong country that now believes in and fights for liberty and human dignity. It didn't have to be this way ya know. The US could have been a poor warzone or an oppressive Nazi- like regime if not for the wisdom of people who helped write the Constitution.
Civil Rights always take precedent over states rights, unless it can be proven that the State's interest best serve the needs of the whole or the Civil Right infringes upon another person's Civil Rights.
I second that, even though I disagree with MadMax on this one issue. I do feel better about it. If MadMax thinks is ok, how bad can it be?
The legislature was not "taking care of the problem". In fact had we won on equal protection instead of privacy, Texas rep. Warren Chisum was prepared to introduce a bill that bans sodomy for ALL Texans. And if the legislature had miraculously voted to repeal it, neither Bush or Perry were willing to sign it to make it official. How long do you expect us to wait for them to get it right? Another century or two? An unjust law that is seldom enforced is still an unjust law and should be removed by any means necessary. the arrests weren't even the largest problem. It was using the sodomy law as an excuse to discriminate in other areas: employment, housing, child custody. You can denegrate it to the "right of two men making out" but for millions of Texans it means basic human dignity.
Agreed by all? lots of people are in favor of keeping the law. When the President was still the Governor he was in favor of it and I don't think he has changed his mind since then. there was even a couple of guys at the victory rally with a Homosexuals burn in hell sign. Don't tell me the populace isn't divided on this issue. If the law was upheld can you imagine the signal that would send to homophobic police officers, district attorneys and judges in those 13 states? They could do exactly what you said and they would have had the Federal government backing them up.
Actually if they all ruled on the basis of equal protection as O'Connor did and not privacy you would have a lot more to worry about regarding gay marriage since that brings up the whole equality issue. Still we'll take it however we can get it. "Mourn the losses because they are many, celebrate the victories because they are few"
