Lawrence v. Texas

[Emsworth]

The decision was most certainly correct, and was constitutionally sound. States, in my view, are prohibited by the Fourteenth Amendment's due process clause from arbitrarily depriving people of liberty, as was done in Texas.

An equal protection argument can also be made in this case, insofar as the actual enforcement of the law is concerned.

[Emsworth]

A18, of course there is no "right to liberty," just as there is theoretically no "right to life." Technically, there is only a right "not to be deprived of life or liberty without due process of law." Otherwise, capital punishment and imprisonment could conceivably be declared unconstitutional.

[Emsworth]

Correct, so quit talking about how the government can't deprive someone of liberty just because you consider it arbitrary. It doesn't say arbitrarily...

If I might crave your indulgence for one more moment, I feel compelled to point out that I was using "arbitrary" in the same sense as "without due process." I am sufficiently literate to comprehend that "it doesn't say arbitrarily." Naturally, I do not feel that the government cannot deprive one of liberty "just because consider it arbitrary," as you put it in your, shall we say, refreshingly blunt fashion.

[Emsworth]

Since I'm bored, I will revive this debate.

The decision was most certainly correct, and was constitutionally sound. States, in my view, are prohibited by the Fourteenth Amendment's due process clause from arbitrarily depriving people of liberty, as was done in Texas.

I suppose that I must retract this previous statement, which I now think is completely incorrect. On reflection, it would appear that Lawrence was incorrectly decided. The notion of "due process" had always been understood as encompassing only procedural protections, until Dred Scott v. Sandford. By definition, a law cannot deny due process of law: such an assertion would be inherently contradictory, because due process of law is defined by the law.

To use Justice Thomas' words, the Texas law was an uncommonly silly one, but still constitutional.

[Emsworth]

What are your thoughts on Justice O'Connor's concurrence.

Certainly, the concurrence strikes me as more sound than the majority opinion. I am more sympathetic to the equal protection argument than the due process argument.

Yet, I think that I would have to disagree with the line of reasoning she has used. According to her (and according to precedent), a law that appears to discriminate is valid under the equal protection clause only if it meets the "rational basis test" or a "compelling state interest standard." In general, I am quite skeptical of the various "tests" and "standards" that the Supreme Court has applied, because they have less to do with judicial review and more to do with vetoing policy. The "rational basis" test does not, I think, have any constitutional basis; there is nothing in the Constitution prohibiting states from passing apparently silly or irrational laws. Neither do I find the "compelling state interest" argument particularly compelling; again, there is nothing in the Constitution that requires a state to have a "compelling interest" when regulating something.

I could make a very crude argument to the following effect: Homosexuals and heterosexuals are both equally prohibited from enaging in same-sex sodomy, and equally protected in engaging in different-sex sodomy. Of course, this argument might strike one as absurd, crude, and callous, but it is, I think, constitutionally valid. (The same argument applies in the case of marriage.)