Lawrence v Taylor did not establish fundamental rights for homosexuals

[Quantum Windbag]

Interesting.

In Thursday’s unanimous ruling, the three-judge panel granted both of the Administration’s requests. It declared the Phillips decision to be legally dead, and vacated it. Noting that the Log Cabin Republicans had stated that they intended “to use the district court’s judgment” in other cases, the panel responded: “We will be clear: It may not. Nor may its members nor anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.” When Congress repealed the “don’t ask/don’t tell” policy, the panel said, the Log Cabin Republicans got all that they had sought by suing the Pentagon’s leaders. Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books. Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion.
In the decision in Lawrence v. Texas, the Supreme Court had struck down a state law against sodomy. In doing so, the Court spoke in very broad terms about constitutional rights of personal privacy for adult gay couples, in their intimate relations and in their personal lives. Gay rights advocates across the Nation have been using the precedent at the core of their arguments, including the attack on “don’t ask/don’t tell,” and against laws that deny marriage rights and other government-provided benefits to same-sex couples and individuals.
Judge O’Scannlain, however, wrote explicitly that “Lawrence did not establish any fundamental right.” It did not give lower courts any basis, the judge added, for creating any new fundamental rights for gays. He lambasted Judge Phillips for the legal rationale she had used for nullifying the military gay ban, contending that she had not followed the formula that the Supreme Court itself had laid down for judging claims of violations of so-called “substantive due process” guarantees.
Although the case had to be dismissed as moot, the judge said, “if we had been able to reach the merits…, I would have been obliged to reverse.” He went on to make a further argument for “judicial self-restraint” whenever a court is asked “to break new ground in the field of substantive due process.”

Federal judge warns on gay rights : SCOTUSblog

 

[C_Clayton_Jones]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

…no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

But how far does this embrace extend?

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers to an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality.

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

But unlike private sexual conduct, like sodomy, neither adultery nor bigamy has ever been protected by our society--to the contrary both have always been illegal, and a basis for marital dissolution. And unlike the history of sodomy laws detailed in Lawrence, there is a long history of these laws being enforced.

So to the extent that the due process inquiry is based in tradition, the rights to commit adultery or bigamy look very unlike the right at issue in Lawrence (and thus would not generate heightened scrutiny at all).

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:

Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence

What about laws banning same-sex marriage?

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

 

[Article 15]

Lawrence v Taylor did not establish fundamental rights for homosexuals

Was there crack and underage prostitutes involved?

 

[del]

Lawrence v Taylor did not establish fundamental rights for homosexuals

Was there crack and underage prostitutes involved?

no, but the record for sacks was broken.

is it just me, or does c. clayton make you sleepy, too?

 

[Article 15]

Lawrence v Taylor did not establish fundamental rights for homosexuals

Was there crack and underage prostitutes involved?

no, but the record for sacks was broken.

is it just me, or does c. clayton make you sleepy, too?

lol ... I like his shorter posts.

My attention span is next to nothing.

 

[del]

Was there crack and underage prostitutes involved?

no, but the record for sacks was broken.

is it just me, or does c. clayton make you sleepy, too?

lol ... I like his shorter posts.

My attention span is next to nothing.

 

[Quantum Windbag]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

…no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

But how far does this embrace extend?

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers to an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality.

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

But unlike private sexual conduct, like sodomy, neither adultery nor bigamy has ever been protected by our society--to the contrary both have always been illegal, and a basis for marital dissolution. And unlike the history of sodomy laws detailed in Lawrence, there is a long history of these laws being enforced.

So to the extent that the due process inquiry is based in tradition, the rights to commit adultery or bigamy look very unlike the right at issue in Lawrence (and thus would not generate heightened scrutiny at all).

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:

Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence

What about laws banning same-sex marriage?

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

Why should anyone believe that you know more about the law than a federal appellate judge?

 

[Article 15]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

…no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

But how far does this embrace extend?

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers to an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality.

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:

Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence

What about laws banning same-sex marriage?

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

Why should anyone believe that you know more about the law than a federal appellate judge?

I didn't read his post or anything but I'm sure this is a solid rebuttal.

 

[jillian]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

…no one who has read the majority opinion as a whole can plausibly endorse this latter interpretation of the Court's opinion. It is too strong an embrace of rights, and a proclamation of freedom for gays and lesbians, for that interpretation to be sustainable. All five majority justices signed onto the opinion's unequivocal language (Justice O'Connor concurred in the judgment, but would have invalidated the law under the equal protection principles).

But how far does this embrace extend?

The key to developing the privacy line of cases in the past has been analogy--how much does a newly asserted right look like those the Court has already recognized? That will undoubtedly hold true with Lawrence as courts are asked to reconsider the validity of other laws regulating similar conduct.

When laws that regulate analogous conduct are examined, morality justifications alone plainly will not be enough to save them. In Lawrence, the Court explicitly adopted the following language from Justice Stevens's Bowers dissent: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

But which kinds of conduct, exactly, will be deemed similar to the conduct at issue in Lawrence? At one point, Lawrence refers to an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Later, however, the opinion also makes plain that not all statutes regulating sex will be vulnerable to constitutional attack.

Indeed, the Court tries to hem in its holding by listing the factors not implicated by the Texas anti-sodomy law: minors, coercion, public conduct, prostitution, and public or governmental recognition of the relationship. It also points out what is involved here: two adults, mutual consent, and sexual acts common to their lifestyle.

This analysis spells doom for the few remaining anti-fornication laws on the books. Like homosexual sodomy, fornication is a private, consensual, sexual act, and the laws forbidding it have no conceivable justification other than morality.

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:

Laws Banning Same-Sex Marriage Are Indeed Vulnerable After Lawrence

What about laws banning same-sex marriage?

The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship. But, importantly, its reasoning may well extend to invalidate such laws anyway.

In Lawrence, the Court dispensed with tradition as the sole determinant of a privacy right, emphasizing the role of autonomy and personhood in assessing what rights are too important to be toyed with. Same-sex marriage has not traditionally been seen as a right, but neither has same-sex sodomy - or sodomy in general - and Lawrence found a right to these latter practices.

Indeed, one would think that, putting tradition aside, the right to marry the person of your choice should be one of the most fundamental of all. If it isn't, the Court will be hard put to say why.

Once a right to same-sex marriage is recognized, any law banning it - or regulating it differently from the way opposite-sex marriage is regulated - will predictably be struck down. Such laws have no valid justification; they are based either on pure animus against homosexual persons, or on so-called "morality" considerations that Lawrence and Romer have made clear cannot alone support a liberty- or equality-infringing law.

In sum, Lawrence is itself a monumental development in Constitutional law, but the future may be even more interesting. After Lawrence, challenges to laws banning same-sex marriage are the logical next step.

Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

Why should anyone believe that you know more about the law than a federal appellate judge?

I don't need to be a federal appellate judge to know that Dred Scott was a bad decision. His scholarship is good. Feel free to counter with something that is meaningful.

 

[Quantum Windbag]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:


Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

Why should anyone believe that you know more about the law than a federal appellate judge?

I didn't read his post or anything but I'm sure this is a solid rebuttal.

 

[Quantum Windbag]

The case is Lawrence v Texas, not 'Taylor'.

Judge O’Scannlain makes the same mistake many jurists have over the years, not understanding the unique nature of the Lawrence ruling.

The Court ‘declined explicitly to hold that private sexual conduct, including sodomy, is a fundamental right [nor] explicitly to hold that strict scrutiny applies when this right is infringed. Therefore, on this view, these holdings are not law.’

However:

Justice Kennedy brilliantly creates a ruling recognizing a right not necessarily ‘fundamental’ but nonetheless deserving of a heightened level of review. Consequently the designation of ‘fundamental right’ is not necessary when reviewing potential preemption with regard to gender-based cases, such as DADT.

Indeed, the ruling in Lawrence had to be crafted as it was to ensure issues such as adultery or bigamy not be subject to strict scrutiny:

With DATD now dead, Lawrence will provide the framework to move ahead addressing the issue of same-sex marriage:


Link to full text quoted above:

FindLaw's Writ - Grossman: The Consequences of

Why should anyone believe that you know more about the law than a federal appellate judge?

I don't need to be a federal appellate judge to know that Dred Scott was a bad decision. His scholarship is good. Feel free to counter with something that is meaningful.

He is attempting to counter the argument that it is not a fundamental right with another decision that says it is not a fundamental right. Exactly what is it I need to counter?

 

[jillian]

Why should anyone believe that you know more about the law than a federal appellate judge?

I don't need to be a federal appellate judge to know that Dred Scott was a bad decision. His scholarship is good. Feel free to counter with something that is meaningful.

He is attempting to counter the argument that it is not a fundamental right with another decision that says it is not a fundamental right. Exactly what is it I need to counter?

The Court in Lawrence struck down the Texas sodomy law based on equal protection. The Court may have stopped short of saying it is a fundamental right, but by striking down the law, it is clear that the Court felt that homosexuals were being subjected to unconstitutionally disparate treatment.

I'm not quite certain what more you're looking for.

 

[Quantum Windbag]

I don't need to be a federal appellate judge to know that Dred Scott was a bad decision. His scholarship is good. Feel free to counter with something that is meaningful.

He is attempting to counter the argument that it is not a fundamental right with another decision that says it is not a fundamental right. Exactly what is it I need to counter?

The Court in Lawrence struck down the Texas sodomy law based on equal protection. The Court may have stopped short of saying it is a fundamental right, but by striking down the law, it is clear that the Court felt that homosexuals were being subjected to unconstitutionally disparate treatment.

I'm not quite certain what more you're looking for.

I am looking for why you think Clayton made an argument based on good scholarship that refutes the decision I posted that said Lawrence did not establish a fundamental right for homosexuals. That was your claim, back it up.