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Barking Up the Wrong Tree by Jeff Jackson (6/30/03)

The Land of the Free - A Conservative Politics Web Site

Some of those generally like minded individuals I often find myself agreeing with are really going after the Supreme Court for the decision handed down on the Texas sodomy laws where 2 homosexual men were prosecuted under the statute. Personally I believe that they are barking up the wrong tree on this one.

The most common arguments I hear against this case are:

This is a state's rights issue and the Supreme Court has no jurisdiction to hear it.
The case is contradictory to the ruling made just weeks before concerning the 14th Amendment and the University of Michigan admission policy.
That even IF these laws are bad they are rarely enforced and even slowly being stricken from the books anyway.

Personally all of these arguments are invalid from my perspective and I feel that many people from Rush Limbaugh to state representatives are looking and really stretching for arguing points which are unneeded.

As far as the State's Rights issue is concerned the 14th Amendment prohibits all States from passing or enforcing laws that do not treat all persons in their jurisdiction equally. I neither agree with, accept as natural or promote the homosexual lifestyle. I do however tolerate it. To pass laws that prohibit certain sects of society from participating in activities that others do (i.e. sex) free of persecution clearly violates the 14th Amendment's equal protection guarantees. States that begin to set standards as to what is and what is not legal sex between consenting adults behind closed doors are not only violating the 14th Amendment but treading into serious privacy issues. We don't need such laws. All we need is a little common sense that as long as no one's rights are infringed or endangered the State should not be legislating such behavior.

It is true that States have the right to legislate morality. We have done it since our founding with laws that prohibit murder, stealing, etc. However, the moral basis for these laws is that they directly inhibit another person's enumerated rights. Murdering someone clearly violates the person's right to life.

Some are upset that this action by the Supreme Court trumps the will of the people of the State of Texas. It is an argument that is invalid simply because no matter what the will of the people of a state, the State itself is prohibited from enacting laws against it if the 14th Amendment is violated. And the Supreme Court has jurisdiction over all cases "in Law" that "arise under (our) Constitution." Article III Section II. And again while I do not agree with homosexual sex I can see no compelling legal or Constitutional basis to separate forms of sexual conduct and criminalize such events between consenting adults. Are there health problems as some will suggest? Maybe. But there are health problems with many, many other legal activities we do ranging from smoking to driving cars and not one of them is illegal to this day. To outlaw homosexual's from having sex is like saying that smoking is prohibited for homosexuals while it is legal for heterosexuals.

As to the second most common argument that I hear about the contradictory nature of the ruling in this case and that of the University of Michigan case, while in the overall scheme of the law I do see deeply troubling problems the fact is that I believe the court made the correct decision in with regards to sodomy laws. We should promote that and continue to hold opposition to the U of M decision and work to have that ruling corrected. I believe that the Court made the wrong decision with regards to U of M. To say that because they decided one way there and another here while it makes interesting legal debate and raises serious questions as to the competency and quality of the court, it also serves to diminish the findings of this case. It does pose questions as to the ability of some judges that offered contradictory opinions and may ultimately undermine the foundation of both cases. But we must strive to correct the legal system and abolish laws that are Unconstitutional. All the while we must strive to place upon the bench judges that decide cases upon legal merit rather than political or social whims.

Perhaps this is just another case of doing the right thing for the wrong reasons.

And finally to even use reason #3 is to set aside our responsibility to not only enforce our own freedoms but those of all free men in this country. Again, the Supreme Court not only has the right and the authority to take up such a case but a moral necessity to hear the case. People can not be allowed to justify bad laws (or any action) based upon the argument that it rarely is enforced and that in the future the law may not even exist. This attitude of someone else will solve the problem is possibly the most destructive attitude we as Americans can have. This is a step in the right direction although the logic may be shaky. And the shaky logic is what bothers me the most next to the question of the court's competence in light of contradictory rulings. That we can get to the proper answer through the wrong course is never something that I choose to put my faith in to work properly in the future.

Commentators such as Limbaugh continue to pound us with how we that disagree don't know what we are talking about here. They talk about Maurbury v. Madison and how such cases changed the role of the Supreme Court to being a final arbiter of the Constitution. I say that they are looking at it completely wrong. We don't need to look at legal precedents to understand the Court's role. It is clearly spelled out in Article III Section II. It doesn't matter what cases or other precedents have been set or what legal opinions you choose to cite. To do so is making this argument more complicated than it needs to be.

The Court is granted the jurisdiction over cases concerning the Constitution. The problem is that while the legislative and executive branches have checks and balances over each other there are no real such things over the Supreme Court except the nomination process and the ability to remove judges that do not act in "good behavior". What we probably need is a Constitutional amendment that puts in such balances. Make it so that a super majority of 2/3rds of the members of Congress can override the Supreme Court. But we need something. But to even insinuate that the Court doesn't have the authority to hear or rule on cases of Constitutional Law when they are clearly given this power in the Constitution itself is the most ludicrous argument to date. And the fact that Limbaugh and others have dedicated so many hours to attempting to convolute the role of the Court only serves to confuse me as to where their minds are.

No legal opinion or flawed case history should be used to supersede the rights and powers of the Constitution. And the Constitution is generally very easily understood.

Are there possibilities that in the future some may attempt to extend the same legal standards of this case to other laws that prohibit certain behavior and make them legal under the blanket of privacy? Yes. But it is also our duty as Americans to evaluate these cases as they arise rather than to work our selves into a fury and conjecture about what will be. It is our duties to make certain that all men are treated equally under the laws as they exist. That is why we have the 14th Amendment. And as long as we remain vigilant in our protection of the Constitution we can continue to guarantee those rights that our truly ours and prevent the over reaching power of government.