I’ve gotten another letter about Lawrence, in response to this post. Allow me to cite and refute:
I found your analysis almost as inaccurate as the one you suppose to correct.
First of all, to settle the matter once and for all, the case not decided under the Equal Protection Clause of the Fourteenth Amendment OR substantive due process as found in the Fifth. It was decided on the Due Process Clause in the Fourteenth. Perhaps one of you would actually like to read the case?
It was an error on my part to cite the 5th instead of the 14th for substantive due process (a typo, really — I know the amendments), but it’s not of any real legal significance. Both Amendments say the same thing about due process, and both are applicable against the states (and the doctrine of substantive due process has actually been applied to both amendments). Thus I fail to see how this is a major "gotcha." My interpretation of the law was absolutely correct, because there isn’t a functional difference between the 14th and the 5th in this matter. This little pissant is just trying to condemn me on what amounts to a technicality.
Second of all, the issue of sexuality was quite important. You may or may not have noted the vast portion of the opinion dealing with the inaccuracies of Bower, a case decided exclusively upon sexuality, leading the Court to overrule it. Considering Bower was overruled, I would certainly cite sexuality as an important factor.
I too can play at this game. HA! It was Bowers, not Bower! He cited to the wrong case! Did he ever even actually read Lawrence? It cited to Bowers soooo many times! What a maroon! Ha!
See? This kind of asinine rhetoric doesn’t fly, now does it?
As for his actual point here (and I assume he means "homosexuality when he says "sexuality"), Bowers was arguing for the legality of sodomy laws as a whole — those implicating homosexuals alone and those that proscribed sodomy for heterosexuals as well — to contend with the equal protection argument. Thus it had to consider the issue of homosexuality. But since Lawrence was decided on "liberty" grounds, and not equal protection grounds the issue of homosexuality was actually quite irrelevant.
Thirdly, the Equal Protection Clause’s “strict scrutiny” test is not just for race (and to some extend, gender), it is also used as a test of discrimination on the basis of religion and national origin. It also covers “fundamental rights", such as voting, for example, as well as others.
And this is important because…? Look, I know "strict scrutiny" has been applied to a few ancillary areas similar to race (particularly ethnicity and national origin) and areas protected in other amendments to the constitution (religion and voting), although I failed to mention that. My point was that the main focus of equal protection strict scrutiny has always been race, and expanding the equal protection clause to any group you please would thus be out of step with its intended meaning. That point stands. Again, he’s trying to get me on a technicality (Bower? I’m still laughin’).
Fourthly, after declaring the decision isn’t based on sexuality, you switch back to defending the fact that homosexuality has enjoyed a negative classification in human morality for thousands of years.
Sub one, you can’t have it both ways.
Sub two, you may be thinking of sodomy (of any sexuality), that has persistantly been viewed as negative for millennia, due to the fact it is a “non-child-bearing” activity. As stated by a multitude of amici, homosexuals as a distinct class of persons did not arise until the late 19th century.
First of all, the reader brought up the equal protection argument, and I was responding to it. I wasn’t trying to have it both ways — I was responding to an argument as given.
Secondly, homosexual behavior has been singled out as morally wrong apart from heterosexual sodomy for thousands of years. The Bible certain did it, and despite what Justice Kennedy said, many of the colonies singled out homosexual activity in their laws as well. My point still stands.
Fifthly, your dig at Kennedy for using international law, if you meant that which was within the Lawrence decision, is unjustified. In Bowers, the majority opinion and concurring opinion by the Chief Justice made a statement about the history of state intervention in homosexual conduct within Western civilization. Kennedy’s citation of a European court decision is simply a response to an inaccuracy in Bowers made by Chief Justice Burger and Justice White. In short, the original and factually inaccurate citation of international law came from Bowers, Kennedy’s citation simply points this out, and it ultimately has absolutely no bearing on the determination of the actual issue at hand.
If I recall correctly, Bowers (hey, he got it right here) focused on history and the tradition of Western Civilization rather than contemporary decisions. Thus a very recent decision by the European Court of Human Rights wasn’t all that relevant. Furthermore, it’s difficult to argue that Kennedy hasn’t been making a point of citing foreign law in his decisions on social issues. He doesn’t rely on them for his holdings, necessarily, but it sends a statement that he’s taking their side in the culture wars. I consider that very relevant to "the actual issue at hand."