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Thursday, July 29, 2004
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FROM THE RIDICULOUS JUDICIARY DESK or "I CAN'T PUT WHAT WHERE?"
(Picture ruthlessly stolen from Judyisms)
Now, I'm no lawyer or anything. I'm not even particularly bright. And God knows I'm a lousy lay (I'll provide a link proving just that later.) But I do fancy myself something of a Constitutionalist. Oh yeah, if you think this will get you laid, buy a cool car instead, trust me on that.
Last year, there was a pretty important case that went before the Supreme Court of the United States. That case was called LAWRENCE et al. v. TEXAS (2003). Lawrence, for people who are interested in any kind of freedom at all, was pretty significant. It struck down a prescedent set by BOWERS v. HARDWICK (1986).
Bowers was one of the more insane rulings that the high court ever made. The facts of the case are as follows;
After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights.
Actually, the case was even uglier than that. The neighbours of Mr. Bowers were less than enthusiastic about living next door to homosexuals. The neighbour decided to call police and report than a crime was in progress in the Bowers home. The police responded and, without a warrant, entered Bowers' home. They entered as Bowers and his lover were, well, doing what lovers do. He was charged with sodomy. At the time, Georgia law allowed a sentence of life imprisonment upon conviction for sodomy.
The Supreme Court upheld Georgia's law. This is how the decision began.
The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
What Bowers essentially said that the fundamental right to privacy was strictly limited. This seemed to fly in the face of GRISWOLD v. CONNECTICUT (1965), which affirmed the right of personal privacy as it pertained to contraception and ROE v. WADE (1973), which extended that right to abortion. It would stand to reason, that given the case law, Bowers would have been decided the other way. Instead, Justice Byron White, a Kennedy appointee wrote:
Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the [478 U.S. 186, 191] claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U.S., at 688 , n. 5, 694, n. 17.
Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.
Essentially this means that you have the right to marry someone of another race (as affirmed in LOVING v. VIRGINIA (1967), use the contraception of your choice (Griswold) or even terminate a pregnancy (Rowe) without interference from the state. You just couldn't fuck in private without the imminent threat of arrest. This made Bowers one of the most schizophrenic decisions in the history of the Court.
Lawrence reversed Bowers and seemingly resolved the issue of personal exual privacy. The Court held last year that;
Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.
This is pretty straightforward. The ruling holds that the state cannot deny liberty to someone based on how or who you fuck, so long as A) The person you fuck is an adult, and B) that adult has a vote as to getting fucked. Couldn't be simpler right?
Wrong.
The 11th Circut Court of Appeals, which ruled in favour of Bowers back in the eighties, has now ruled that there is a complelling state interest in how you fuck yourself.
That's right, the 11th circut has ruled that the state can take away your dildo. Oh, by the way, you can be jailed for owning or even possessing one. It may turn out that Judy was wise beyond her wildest expectations in discarding that which brought her more carnal gratification than even I was able to (NOTE: you'll need to scroll down as she hasn't figured out my handy little way of getting around the permalink dilemma of old Blogger systems that I did.)
Here's a neat little summary of the 11th Circut's ruling,
Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the 11th U.S. Circuit Court of Appeals said on Wednesday.
The split panel upheld an Alabama law -- nearly identical to one in Georgia -- that made the sale of sex toys a crime punishable by up to a year in prison.
Okay, but what about Lawrence?
Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing homosexual sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution.
Wow. That statement is fucked in ways that I shouldn't even be forced to explain. Basically, the court cannot stop two men from fucking each other in the ass so long as non-condom plastic is not involved in said fuckery. Of course, prohibiting condom use would violate Griswold. But once you break out a marital aid, you can go to the clink. Homosexual, straight or merely lonely, you get to go to the hoosegow if you use a toy. I needn't remind any of you that going to prison increases your chances of a same-sex sexual assault expotentially.
Is the 11th circut encouraging gay rape? It would seem so.
The 11th circut also seems to be overlooking the Fourteenth Amendment yet again. It reads as follows,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Under Lawrence , the Supreme Court has ruled that you can insert a penis pretty much wherever you want to. That is now the law of the land. But, as the 11th circut has ruled, a reasonable facsilimilie won't cut it.
This is where the "equal protection of the laws" part comes in. What about people who don't have ready access to a penis? Lesbians and spinsters come to mind. What about them? I don't have to tell my female readers that sometimes fingers just don't cut it.
Since the 11th Circut's decision pertains specifically to an Alabama law, I'll defer to the wisdom of the Reverend Martin Luther King, Jr.
I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. I have a dream today!
And I have a dream where women I sleep with may find the satisfaction that I can't provide. I have a dream where spunky lesbians get rogered randily with the toy of their choice. I too, have a dream today!
Because, it seems wise to always dream small.
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