Big Lizards:Blog:Entry “Rum, Sodomy, and the Lash: Response to Captain Ed”

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November 23, 2006

Rum, Sodomy, and the Lash: Response to Captain Ed

Hatched by Dafydd

In a Tuesday post, Captain Ed argues -- unconvincingly -- that the Supreme Court's decision in Lawrence v. Texas, which struck down all "anti-sodomy" laws nationwide, necessarily leads to the legalization of polygamy and same-sex marriage.

But his argument founders on a fundamental misunderstanding of the distinction between the two cases.

Here is the captain's argument on a nutshell:

Quite a while back (two years ago), I wrote that the Supreme Court decision in Lawrence v Texas would open a Pandora's box about all sorts of cultural norms currently supported by statute throughout the United States. At the time, Jonathan Turley had written about the impending sentencing of Tom Green for polygamy, and opposed it on the basis of personal choice. I wrote:

I don't see anything particularly wrong with gay marriage, as long as a majority of voters approve it. I also think that the Texas sodomy laws were about as stupid as you could have found in any penal code. ... However, the Court used a sledgehammer when a flyswatter would have prevailed, and the consequences of their decision has led -- logically -- to the appeal of all anti-polygamy statutes. If in fact the Court applies the same thinking to polygamy as it did to the sodomy statutes, then they have no choice but to free Green and declare all anti-polygamy statutes null and void....

Not everything that transpires between consenting adults is legal or should be legal, let alone given Constitutional protection. But that's where the SCOTUS has left us. They should take the opportunity to reverse their precedent and acknowledge the error they made in Lawrence, before Constitutionally guaranteed prostitution and adult incest come next.

First, we must set some ground rules:

Just because lawyers cite Lawrence (or any other decision) in a challenge to laws banning polygamy doesn't mean there is a logical inference: lawyers will cite anything they can imagine, hoping something sticks.

Notwithstanding (1), Professor Turley did not, in fact, cite Lawrence for that point.

Lawrence did not hold that "everything that transpires between consenting adults is legal or should be legal;" it didn't overturn the drug laws, for example, so it's still illegal for consenting adults to transact with each other for crack cocaine. Lawrence only held that the right to privacy included a right of consenting adults to have sex without fear of being prosecuted by Peeping-Tom cops under sodomy laws.

The mere fact that a liberty can be abused is not grounds for eliminating the liberty.

But once we admit all that, it's clear that Captain Ed in fact makes no argument at all either in the original post from 2004 or the more recent post that mostly recaps the first. He says, in effect, that since the Washington Post cited Lawrence in its attack on laws defining marriage as one man, one woman, therefore Lawrence must be overturned.

This is logical nonsense. If a doofus lawyer cited freedom of speech as a defense to his client having ordered a hit man to kill someone, that doesn't mean we must immediately repeal freedom of speech.

In fact, even if a doofus lawyer working for a newspaper cited freedom of speech as a defense against a charge under the espionage act of publishing classified national-security documents -- and even if the doofus Supreme Court agreed and struck down the act -- the problem is still not that we allow freedom of speech. The problem is that the Court made the wrong decision on the espionage case; and the solution is for a later Court to overturn that decision, not decisions protecting actual freedom of speech.

So with Lawrence. The Court made no ruling whatsoever on same-sex marriage, consanguineous marriage, or polyamory. Lawrence applied only to actions, finding a liberty right (under privacy) to engage in certain actions. But demanding approval of a license for legal "marriage" is not an act of privacy, or any act. It is a demand for social affirmation in the form of a legal document ratifying and celebrating the union.

It is a question of basic liberty to say the government cannot regulate sexual contact between adults; but legal marriage necessarily inserts the government, because by definition, legally approving a marriage is a public act by the government -- not an act by the spouses or a priest, rabbi, or minister. The government certainly has the authority to decide whether it will take that action, declaring two (or more) people to be legally married.

It's the difference between saying that I have freedom of speech and saying that I have the right to demand that something I write be published in a State Department document.

This is how I can simultaneously hold two apparently opposite positions without losing consistency:

I absolutely support the Court's decision in Lawrence v. Texas that states cannot outlaw various kinds of sex between consenting adults on the grounds that they're "icky;" there is a liberty interest here that cannot be infringed without a compelling state need, which doesn't exist;

Yet I absolutely support privileging the traditional definition of marriage, and in fact might even support making divorce significantly harder (at least when the marriage has issue). There is no constitutional "liberty interest" that forces states to allow same-sex marriage, polyamorous marriage, consanguineous marriage, or marriage involving minors... though of course states likewise have the authority to allow any of these if they lawfully decide to do so.

I wonder if anyone who believes, as Captain Ed does, that the Lawrence decision requires the Court to force same-sex marriage and polygamy on the states will take up the cudgel and show why private liberty compels state approval of every imaginable way of exercising that liberty?

Hatched by Dafydd on this day, November 23, 2006, at the time of 5:23 AM

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Comments

The following hissed in response by: Charlie

Interesting commentary, particularly your comment about making divorce more difficult.

When I started to practice law in California in 1965, divorce was much more difficult to obtain. The party seeking a divorce actually had to prove certain grounds such as adultery or mental illness in order to prevail.

This was changed in the early 1970s when the legislature enacted "no fault divorce". The proponent of the divorce merely had to state that "irreconcilable differences" had arisen which caused a "irremediable" end to the marriage.

I am of the opinion that this change was not a good change.

The above hissed in response by: Charlie at November 23, 2006 8:06 AM

The following hissed in response by: snochasr

I am afraid that your argument rests on the notion that courts never, ever rule capriciously. Just because a lawyer cites Lawrence as support for striking down rules on polygamy does NOT mean that courts will NOT agree, any more than it means that they will.

I think the good Captain is right in principle, that courts should be ruling as narrowly as possible, wherever possible, rather than creating whole new fields of "rights" that must then be defended against.

The above hissed in response by: snochasr at November 23, 2006 11:40 AM

The following hissed in response by: Terrye

I agree with Dafydd. Telling grown people what kind of sex they can have is ridiculous.

The above hissed in response by: Terrye at November 23, 2006 1:46 PM

The following hissed in response by: Dafydd ab Hugh

Snochasr:

Let's start from the beginning. Do you deny, as I think XRLQ does, that we have any rights beyond those specifically enumerated in the Constitution?

Do you say that no rights predate the Constitution, and that if an amendment were ratified eliminating, say, the right to assemble, that thereafter we literally would not have that right -- as opposed to having the right but it being suppressed?

In other words, do you believe that rights are inherent and inalienable, and the only question is whether a government recognizes them? Or that they only come into existence when a government creates them?

This is the starting point.

Dafydd

The above hissed in response by: Dafydd ab Hugh at November 23, 2006 1:51 PM

The following hissed in response by: Robert Schwartz

I won't go into the difference between the holding of a case, dicta in the opinion and the reasoning in the opinion because its thanksgiving, but Dafydd, you are wistling past a grave yard.

The above hissed in response by: Robert Schwartz at November 23, 2006 6:36 PM

The following hissed in response by: Terrye

As far as thr Founding Fathers were concerned, the government did not give rights. The right were ours to begin with, government could only protect rights.

This is why we can not join the International Criminal Court. The Constitution makes it plain that whenever any foreign treaty conflicts with the Constitution, the Constitution wins. And the ICC does not recognize those inherent rights.

The above hissed in response by: Terrye at November 24, 2006 3:27 AM

The following hissed in response by: Dafydd ab Hugh

Robert Schwartz:

I won't go into the difference between the holding of a case, dicta in the opinion and the reasoning in the opinion because its thanksgiving, but Dafydd, you are wistling past a grave yard.

Well! Who could argue with that? <g>

Dafydd

The above hissed in response by: Dafydd ab Hugh at November 24, 2006 7:34 AM

The following hissed in response by: nk

Without looking it up, I remember Lawrence being decided very narrowly -- with the author of the majority opinion expressly ruling out polygamy, among other things, as a consequence of the ruling. From the facts of the case I thought it should have been decided on Fourth Amendment grounds but that would have gotten the police mad at the Supreme Court. It really was not much of a well-reasoned opinion. More like "if Texas likes it, we don't".

The above hissed in response by: nk at November 24, 2006 12:19 PM

The following hissed in response by: Dick E

Dafydd-

I agree with your conclusions (albeit I'm not qualified to opine on their legal merits) and with your comment on freedom of speech.

On speech, the way I put it is that the Constitution guarantees freedom of speech, but doesn’t guarantee an audience -- at least not whatever audience we might demand.

The above hissed in response by: Dick E at November 24, 2006 3:00 PM