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The legacy of Lawrence v. Texas. What legacy?

Old 03-07-07, 10:38 AM
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The legacy of Lawrence v. Texas. What legacy?

Many doomsayers feared that with the SCt ruling in Lawrence v. Texas (that invalidated state laws criminalizing homosexual sodomy) that the sky would fall - not only that dogs and cats would be living together but that their owners would be fucking them. Well, it certainly seems to not be the case, and furthermore, lower courts aren't paying much attention to the Lawrence decision.

http://www.law.com/jsp/article.jsp?id=1172829802044

'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom
Howard J. Bashman
Special to Law.com
March 5, 2007

Perhaps owing to the nation's puritanical origins, in the United States we love to legislate about sex -- even sex between consenting adults or between consenting adults and inanimate objects.

In the aftermath of the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas invalidating a Texas ban on homosexual sodomy between willing adult participants, many wondered whether other laws regulating sexual conduct between consenting adults would be vulnerable to legal challenge.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

In the more recent of the two rulings, the Supreme Court of Ohio late last month rejected a man's challenge to a state law that criminalizes sexual conduct between a stepparent and stepchild even if both are adults and unrelated by blood, and both willingly participate in the conduct. In seeking to challenge the law as unconstitutional as applied to his case, the stepfather argued that Ohio had no legitimate interest in regulating sex between consenting adults.

However, Ohio's highest court disagreed by a vote of 6 to 1. The majority's opinion observed that "Lawrence did not announce a 'fundamental' right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren." The Ohio justices found that, while the Texas statute in Lawrence was unconstitutional under the so-called "rational basis" test, a rational basis existed for Ohio to prohibit even consensual sex between a stepparent and an unrelated stepchild.

The legitimate interest that the Ohio court recognized was the state's interest in protecting the family unit and family relationships. The Supreme Court of Ohio went on to recognize that if the stepfather and stepdaughter wished to have the ability to engage in sexual relations free from government regulation, they could do so -- if the stepfather divorced the stepdaughter's biological mother.

Some local news coverage of the Ohio ruling noted that the stepfather could still seek appellate review from the U.S. Supreme Court based on his argument that Lawrence v. Texas requires the invalidation of his conviction. But I would be very surprised if the U.S. Supreme Court saw any merit in that argument or was even interested in hearing this case on the merits.

Also last month -- on Valentine's Day, as coincidence would have it -- the 11th U.S. Circuit Court of Appeals issued a decision that may represent the last gasp in an effort to invalidate an Alabama law prohibiting the commercial distribution of sex toys. The lone issue remaining for consideration in the case's latest visit to the 11th Circuit was "whether public morality remains a sufficient rational basis for the challenged statute after the Supreme Court's decision in Lawrence v. Texas."

The 11th Circuit's opinion explains: "[T]he ACLU argues [that] this case is indistinguishable from Lawrence -- just as in that case, in this case there is no legitimate state interest, including public morality, that supports the challenged Alabama statute."

But the 11th Circuit disagreed, observing that "while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity."

Thus, the 11th Circuit ruled, "we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute."

For that reason, the court affirmed the Alabama federal district court's most recent ruling in the case and refused to invalidate that state's statute prohibiting the commercial distribution of sex toys.

In the immediate aftermath of Lawrence v. Texas, legitimate questions arose concerning the likely fate of other laws seeking to regulate the sexual conduct of consenting adults. Now, nearly five years later, it appears that the impact of the Lawrence ruling has been far more limited than many had initially hoped -- or feared.
I cannot fathom how the adult stepparent/stepchild case can pass constitutional muster under Lawrence, a wishy-washy opinion though it may be.
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Old 03-07-07, 10:53 AM
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Originally Posted by Red Dog
Many doomsayers feared that with the SCt ruling in Lawrence v. Texas (that invalidated state laws criminalizing homosexual sodomy) that the sky would fall - not only that dogs and cats would be living together but that their owners would be fucking them.
Apparently you haven't seen this: http://forum.dvdtalk.com/showthread.php?t=494392
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Old 03-07-07, 11:26 AM
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Originally Posted by Numanoid
Apparently you haven't seen this: http://forum.dvdtalk.com/showthread.php?t=494392
I can't wait for the rick santorum press conference where he trots this story out as proof that Lawrence v. Texas has destroyed western civilization.
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Old 03-07-07, 03:32 PM
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Alabama STILL has that sex toy law? As ultra-conservative LA might be, it sure doesn't seem bad as TX or AL.

Ohio has that law about adult stepparent/stepchild, what about adult stepchild/stepchild? On the MTV Undressed tv show, they had an episode about a young couple, unrelated, who were dating, but their parents were getting married so they began to feel a bit weird about things.
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Old 03-08-07, 07:42 AM
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Originally Posted by Red Dog
I cannot fathom how the adult stepparent/stepchild case can pass constitutional muster under Lawrence, a wishy-washy opinion though it may be.
I cannot fathom why it would be illegal in the first place. Who cares?
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Old 03-08-07, 09:03 AM
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Things take time. Just remember that a couple(maybe 3 or 4) of decades ago, homosexuality was a diagnosed mental illness.
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Old 03-08-07, 09:10 AM
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Originally Posted by bhk
Things take time.

In jurisprudence, that is generally not the case after a landmark decision. Landmark cases tend to have a open-floodgate effect. Therefore, the logical conclusion is that Lawrence is not the landmark decision that many thought it to be. Given it's wishy-washiness, this is no surprise to me.
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Old 03-08-07, 09:12 AM
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Originally Posted by Red Dog
In jurisprudence, that is generally not the case after a landmark decision. Landmark cases tend to have a open-floodgate effect. Therefore, the logical conclusion is that Lawrence is not the landmark decision that many thought it to be. Given it's wishy-washiness, this is no surprise to me.
OK I stand corrected. I was thinking more about attitudes.
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Old 03-08-07, 09:15 AM
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Originally Posted by Jason
I can't wait for the rick santorum press conference where he trots this story out as proof that Lawrence v. Texas has destroyed western civilization.
Who?
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Old 03-08-07, 09:24 AM
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Hey, this was about a gay man's right to have hot gay sex. You straight people can get your own Supreme Court decision.
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Old 03-08-07, 12:02 PM
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Old 05-02-07, 02:50 PM
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http://www.boston.com/news/globe/edi...be_on_its_way/

JEFF JACOBY
Lawful incest may be on its way

By Jeff Jacoby, Globe Columnist | May 2, 2007

WHEN THE BBC invited me onto one of its talk shows recently to talk about the day's hot topic -- legalizing adult incest -- I thought of Rick Santorum.

Back in 2003, as the Supreme Court was preparing to rule in Lawrence v. Texas, a case challenging the constitutionality of laws criminalizing homosexual sodomy, then-Senator Santorum caught holy hell for warning out that if the law were struck down, there would be no avoiding the slippery slope.

"If the Supreme Court says you have the right to consensual sex within your home," he told a reporter, "then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

It was a common-sensical observation, though you wouldn't have known it from the nail-spitting it triggered in some quarters. When the justices, voting 6-3, did in fact declare it unconstitutional for any state to punish consensual gay sex, the dissenters echoed Santorum's point. "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . called into question by today's decision," Justice Antonin Scalia wrote for the minority. Now, Time magazine acknowledges: "It turns out the critics were right."

Time's attention, like the BBC's, has been caught by the legal battles underway to decriminalize incest between consenting adults. An article last month by Time reporter Michael Lindenberger titled "Should Incest Be Legal?" highlights the case of Paul Lowe, an Ohio man convicted of incest for having sex with his 22-year-old stepdaughter. Lowe has appealed his conviction to the Supreme Court, making Lawrence the basis of his argument. In Lawrence, the court had ruled that people "are entitled to respect for their private lives" and that under the 14th Amendment, "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." If that was true for the adult homosexual behavior in Lawrence, why not for the adult incestuous behavior in the Ohio case?

The BBC program focused on the case of Patrick and Susan Stubing, a German brother and sister who live as a couple and have had four children together. Incest is a criminal offense in Germany, and Patrick has already spent more than two years in prison for having sex with his sister. The two of them are asking Germany's highest court to abolish the law that makes incest illegal.

" We've done nothing wrong," Patrick told the BBC. "We are like normal lovers. We want to have a family." They dismiss the conventional argument that incest should be banned because the children of close relatives have a higher risk of genetic defects. After all, they point out, other couples with known genetic risks aren't punished for having sex. In any event, Patrick has had himself sterilized so that he cannot father any more children.

Some years back, I'd written about a similar case in Wisconsin -- that of Allen and Patricia Muth, a brother and sister who fell in love as adults, had several children together, and were prosecuted, convicted, and imprisoned as a result. Following the Supreme Court's decision in Lawrence, they appealed their conviction and lost in the Seventh Circuit Court of Appeals. Lowe will probably lose too.

But the next Lowe or Muth to come along, or the one after that, may not lose. In Lawrence, it is worth remembering, the Supreme Court didn't just invalidate all state laws making homosexual sodomy a crime. It also overruled its own decision just 17 years earlier (Bowers v. Hardwick, 1986) upholding such laws. If the court meant what it said in Lawrence -- that states are barred from "making . . . private sexual conduct a crime" -- it will not take that long for laws criminalizing incest to go by the board as well. Impossible? That's what they used to say about normalizing homosexuality and legalizing same-sex marriage.

In Germany, the Green Party is openly supporting the Stubings in their bid to decriminalize incest. According to the BBC, incest is no longer a criminal offense in Belgium, Holland, and France. Sweden already permits half-siblings to marry.

" Your reaction to the prospect of lawful incest may be "Ugh, gross." But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. "Should Incest Be Legal?" Time asks. Expect more and more people to answer yes.

Jeff Jacoby's e-mail address is [email protected].
Again, as I stated before, these things take time. And Santorum was right on.
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Old 05-02-07, 02:56 PM
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I don't see how sex with a 22-year-old stepdaughter is incest. It's strange, but it's not incest.

Anyhoo, adult consensual incest should be decriminalized.

Also, there is no way that the current SCt would rule that state criminalization of adult incest is unconstitutional. The state could probably craft a good enough public health argument to pass the rational basis test. Santorum's slippery slope isn't very slippery here - had he read Lawrence, he would know this.

Last edited by Red Dog; 05-02-07 at 03:00 PM.
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Old 05-02-07, 03:04 PM
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Originally Posted by Red Dog
I don't see how sex with a 22-year-old stepdaughter is incest. It's strange, but it's not incest.

Anyhoo, adult consensual incest should be decriminalized.

Also, there is no way that the current SCt would rule that state criminalization of adult incest is unconstitutional. The state could probably craft a good enough public health argument to pass the rational basis test. Santorum's slippery slope isn't very slippery here - had he read Lawrence, he would know this.
Agreed with all your points. I just don't get how anyone can even think the Ohio case is incest. Maybe they're confused because icky starts with an 'I' as well.
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Old 05-02-07, 03:20 PM
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Originally Posted by Red Dog
The state could probably craft a good enough public health argument to pass the rational basis test.
What is the public health argument? Does it apply equally to gay adult incest?
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Old 05-02-07, 03:36 PM
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Originally Posted by Red Dog
The state could probably craft a good enough public health argument to pass the rational basis test.
Like what?
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Old 05-02-07, 04:19 PM
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Originally Posted by bhk
Like what?

I was referring to blood relative incest. I'm sure there are studies that they could dig up showing birth defects in babies whose parents are closely related.
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Old 05-02-07, 04:22 PM
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Originally Posted by Red Dog
I was referring to blood relative incest. I'm sure there are studies that they could dig up showing birth defects in babies whose parents are closely related.
The children produced might have birth defects shouldn't be a legal arguement against given that there are ways to eliminate the possiblity of producing children.
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Old 05-02-07, 04:26 PM
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Originally Posted by bhk
The children produced might have birth defects shouldn't be a legal arguement against given that there are ways to eliminate the possiblity of producing children.

You might think, but it would be enough of an argument to pass rational basis. For rational basis, the state doesn't need much of a argument. Historically, almost any argument works for rational basis. Also, while the morality argument cannot be used alone to meet rational basis, it still can be used to supplement another stronger reason.
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