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The Limits of Lawrence -- Consensual Adult Incest:

After the Supreme Court declared Texas' anti-sodomy law unconstitutional in Lawrence v. Texas, there was substantial speculation about the implications of the decision for other laws targeting consensual sexual activity among adults. If state prohibition on consensual homosexual activity was unconstitutional, some reasoned, then it might be difficult to maintain state prohibitions on incest, at least among consenting adults. Not so, ruled the Ohio Supreme Court earlier this week.

In State v. Lowe, the Ohio Supreme Court considered the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter. After first concluding that the statute, by its terms, applied to adults as well as children, a six-justice majority rejected the defendant's constitutional challenge, concluding that the statutory prohibition passed muster under the rational basis test because the state has a legitimate interest in prohibiting sexual relations between relatives, even those related by law rather than blood.

Lowe cites Lawrence v. Texas to argue that he has a constitutionally protected liberty interest to engage in private, consensual, adult sexual conduct with his stepdaughter when that activity does not involve minors or persons who may be easily injured or coerced. In Lawrence, a Texas statute criminalizing homosexual conduct was held to be unconstitutional as applied to adult males who had engaged in private and consensual acts of sodomy. Lowe contends that Lawrence named a new fundamental right to engage in consensual sex in the privacy of one's home.

However, the statute in Lawrence was subjected to a rational-basis rather than a strict-scrutiny test, with the court concluding that the Texas statute furthered no legitimate state interest that could justify intrusion into an individual's personal and private life. In using a rational-basis test to strike down the Texas statute, the court declined to announce a new fundamental right arising from the case.

In addition to emphasizing that the court in using a rational-basis test did not name a new fundamental right, the state in this case distinguishes Lawrence as being limited to consensual sexual conduct between unrelated adults. Lowe and his stepdaughter were not unrelated. The state argues that since Lowe has no fundamental right in this case, and the state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships, the rational-basis test should apply. . . .

We agree with the state that a rational-basis test should be used to analyze the statute. Lawrence did not announce a "fundamental" right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren. Because Lowe's claimed liberty interest in sexual activity with his stepdaughter is not a fundamental right, the statute affecting it need only have a reasonable relationship to some legitimate governmental interest. . . .

. . . as applied in this case, [the statute] bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case.

Justice Pfeifer was the lone dissenter. He argued that the true purpose of the statute was to protect children, not prohibit consensual sexual activity between adults who lack any blood relationship. He also speculated that the only interest this application actually serves is providing the state with a "shortcut to conviction," because the statute provides "a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim." "This sort of use of the statute demeans its true purpose," Pfeifer wrote.

Key to the majority's ruling was its conclusion that Lawrence failed to announce a fundamental right or apply heightened scrutiny, making it easier to sustain other state laws governing consensual sexual activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes.

Justice Stevens (mail):

Lowe cites Lawrence v. Texas to argue that he has a constitutionally protected liberty interest to engage in private, consensual, adult sexual conduct with his stepdaughter when that activity does not involve minors or persons who may be easily injured or coerced.



And Lowe made a good argument.


Justice Pfeifer was the lone dissenter. He argued that the true purpose of the statute was to protec [sic] children, not prohibit consensual sexual activity between adults who lack any blood relationship.



This is very true. It is a very weird justification, this protecting the nuclear family justification. How far can it go? Can you have sex with your brother-in-law? Or sister-in-law? Apparently not. But such a person is not within your immediate family unit (because it is the spouse of your sibling) and such a person is not in an elevated status to you (parent by law to child by law). Furthermore, the "get a divorce and then you can do it" retort does not work, because you cannot make your sibling-in-law get a divorce and it does not promote sanguine relations within your immediate family unit to encourage your blood sibling to get a divorce so you can boff their ex-spouse. Lastly, it makes no sense that the government can limit what sex can be had within the family if adultery is legal (i.e., fornication is not illegal). If you can step outside of the marriage to have sex without having to get a divorce, there is no reason why you should have to get a divorce just to have sex within the family, because some family members are outside of the marriage. The Ohio Supreme Court is saying here that you can penalize one subset of adulterers without penalizing another. That is an Equal Protection claim.* I would appeal this bull.

* "Should we allow the state to sterilize the chicken thief but not the embezzler [of chickens]?"
3.2.2007 8:44am
Cornellian (mail):
Why couldn't he just divorce his wife, thus rendering him no longer related to the wife's daughter?
3.2.2007 8:52am
Justice Stevens (mail):
Why does he have to get a divorce? Other adulterers don't have to get a divorce. That's not equal protection of the law.
3.2.2007 8:53am
Kenvee:
Many states have similar laws, and the purpose is to give protection where there is a an unequal balance of authority. In many states, for example, it's illegal for a doctor to have sex with a patient or for a school official to have sex with a student, even if the student is of legal age. I don't see how this is any different. A parent doesn't stop being a parent just because the child has reached the magical age of consent. There's still a significant coercion factor, and it's hardly unreasonable for the state to intervene.
3.2.2007 8:58am
Classmate-Wearing-Yarmulka (www):
Looks like the majority adopted what a ConLaw professor in my school once described as the "Ick Factor Test".
3.2.2007 9:09am
Solid State (mail):
While there might be an 'as-applied' challenge here, it doesn't seem like a facial challenge could be supported. The state does have an interest in prevention of sexual intercourse within the family in some circumstances - and in the absence of fundamental right in consensual sexual intercourse between adults (or romantic interpersonal relationship + sex) the state can burn down the barn to kill the rat.

Or, are we to take that the Court in Lawrence, despite not designating a fundamental right, intended to create some intermediate level of liberty interest not quite subject to strict scrutiny but requring something more than a rational basis analysis? Seems like this court's decision is correct by precedent, at least under the Fourteenth Amendment liberty interest as described by Lawrence.

Even if the law was overbroad, wouldn't the court at most have to limit its application to 'parent or stepparent sexual relations with children or stepchildren' rather than strike the law entirely - which would be a moot decision in this case?
3.2.2007 9:10am
KevinQ (mail) (www):
I came here to make a point, and Kenvee beat me to it.

However, it bears repeating: The state has an interest in preventing people from being coerced based on unequal power. If the state can prevent adults in a lawyer-client relationship from having sex, then it can prevent adults in a parent-child relationship from having sex, regardless of consanguinity.

Though, given that we're talking about incest here, I suspect Classmate-Wearing-Yarmulka's "Ick Factor Test" (which I'm going to have to remember) also comes into play.

K
3.2.2007 9:16am
John Armstrong (mail) (www):
So the "legitimate interest" is not breaking up the family? Maybe I've been in the northeast too long, but how does a relationship with the stepdaughter cause any more harm than any other affair? Isn't this what we have (unenforced) adultery laws for? There's already a tool that's more directly on-point with the supposed "legitimate interest", so why use this one?

Oh, and one more thing: did anyone ask the wife if she was cool with it? If the state's trying to prevent the breakup of the family unit.. well, no harm no foul.
3.2.2007 9:17am
logicnazi (mail) (www):
Lawrence is far too political and controversial to take any state court decision as a bellwether without more knowledge about the makeup of that court. I have no doubt there are state courts that will bend over backwards to uphold sexual morality laws whatever contortions they must make. I wouldn't be surprised to see some state court rule that prosecution under anti-sodomy laws are still valid if the gay couple forgets to draw their shades.

As far as this particular decision it seems to run into the same problems that all applications of the rational basis test do, namely the ambiguity over what must have a rational basis. If the question is whether there is a rational basis for having the law as opposed to having no law than far too much can be justified. One could easily justify a law forbidding consensual sex between men so long as it also did something else useful. Yet if the question is merely whether there is a rational basis for enacting the law in this particular fashion it rejects too much. There is ALWAYS some list of exceptions that could be written into the law without noticeable harm. I mean surely one does not want a situation where the justices are deciding whether there was a rational basis for not excepting Joe Blow from a particular law.

By choosing what question to ask the justices have so much control over what result to get I tend to think of the rational basis test as little more than an invitation for the judge to apply their own policy judgments and a stand in for the collection of past examples that suggest how it should be applied. This is in contrast to other test where the statement of the test itself gives the layman fair insight into what it means.
3.2.2007 9:19am
DrGrishka (mail):
The 7th Circuit faced this issue relatively recently too, and held along the similar lines. See Muth v. Frank

http://caselaw.lp.findlaw.com/data2/circs/7th/033984p.pdf
3.2.2007 9:24am
Hoosier:
Can we call this the "Woody Allen Example" from now on?

I think my Burkean side is showing, but I have never had much problem with the "Ick Test." Law should both reflect and defend a society's values. The prohibition against incest being one of those.

Icky!
3.2.2007 9:26am
Lucius:
Some good comments here already. If the purpose of the law in question is preventing the ravages of incest, I understand those have traditionally been tied to fear of the results of inbreeding--Hapsburgs, anyone? What if a man wants to have sex with his brother in law? If the purpose is to protect the family, why can one evade the law's effect simply by getting divorced before having sex? It seems to me that at its core, this statute can be based only on one of two factors: (1) fear of the results of in-breeding, or; (2) the "eeww, that's gross" factor. I think Lawerence has pretty much eliminated no. 2 as an acceptable basis for criminalizing private sexual behavior. If this decision is allowed to stand, it makes it that much more obvious (IMHO) that Lawerence was, like all too many SCOTUS decisions of the last 25 years or so, simply a matter of dressing up five justices' personal preferences in constitutional language, completely unmoored from any real consistent logic tied to the language of the Constitution.
3.2.2007 9:31am
Spartacus (www):
But such a person is not within your immediate family unit (because it is the spouse of your sibling) and such a person is not in an elevated status to you (parent by law to child by law). Furthermore, the "get a divorce and then you can do it" retort does not work, because you cannot make your sibling-in-law get a divorce

I wonder if the court would have reached the same decision regarding sublings-in-law. There are really two kinds of siblings-in-law: one type where one is the other's spouse's sibling (and reciprocally, the other is the first's sibling's spouse); the second type is where each is married to one of two siblings. The first type are within two degrees of separation, the second type three. However, the respective siblings of two spouses are not siblings-in-law (that is, my sister and my wife's brother are not siblings-in-law). THis rather arbitrary definition of who is a sibling-in-law makes this whole classification suspect, I would think, under a rational basis test for the purposes of the application of an incest law.
3.2.2007 9:32am
Michael B (mail):
In Germany, a constitutional incest case is underway, this one a brother/sister situation, excerpt:

"A German brother and sister who live together and have had four children have filed an urgent suit with Germany’s constitutional court demanding the “right” to incest and have retained retired University of Dresden CrimProf Knut Amelung as their legal counsel."

[...]

"CrimProf Knut Amelung will argue that a ban on sex between siblings breaches their civil rights and is a “relic of the past.”"
3.2.2007 9:39am
RainerK:
Looks like my pet-peeve topic is on again, as it should be: The strawman "State interest" argument. The one-size-fits-all to justify state-enforced meddling in the lives of supposedly free citizens.
Folks, a democracy can only function, if it is based on the premise that people are free to make decisions, some of which will be bad.
It is, I submit, not productive to choose the highly charged topics of sex and incest to come to conclusions regarding distribution of power in a society and the degree of protection government should afford.
Not to mention that the power distribution bit reminds me of the old communist "Everybody should be equal" slogan.

There is a case going to the German constitutional court challenging the legality of criminalising incest. The argument is that forbidding sex between relatives violates basic rights.
http://www.spiegel.de/panorama/justiz/0,1518,467295,00.html
3.2.2007 9:42am
Ramza:
Theoretical question: There is a man and a women, husband and wife. Well the man is infertile and thus the marriage has not produced any children. Because the man is infertile family tradition states the man should ask his brother (the wife's brother in law) to try to sire an offspring with the man's wife so the family line can continue. Is such a traditon affected by this law?

Kudos if anybody gets this analogy.
3.2.2007 9:44am
Lucius:
I believe there is a Biblical passage to that effect, Ramza (I guess that is what you are after). A more salient question--if we're not worried about defective children due to inbreeding, why is it any of the state's darned business?
3.2.2007 9:48am
Perry Dane:
It has always seemed to me that Lawrence has much less to do with sexual liberty or sexual privacy than with a notion of equal dignity. The identity and sense of self of many homosexuals is so deeply connected to same-sex sexual attraction that to deny them any right to engage in same-sex sex is, in effect, to cut off for them the possibility of a complete human life.

To put it another way: When society bans incest, it is simply telling people who might be tempted to incest to pick someone else (who is unrelated to them) to have sex with; it is not denying who they are as human beings, or cutting off the only form of meaningful sexual expression that their wiring (whether biological or so deeply psychological as to be the equivalent of psychological) allows to them. The same thing is true for polygamy, sex toys, etc.

Now, of course, it could be argued that there are people for whom incest, or polygamy, is similarly a "deep," "wired," part of their identity. But I doubt that.

(There are also, of course, other forms of sexual attraction, such as pedophilia, that, even if "deep" and "wired," are quite properly forbidden because of their demonstrable harm to victims who are incapable of genuine consent.)
3.2.2007 9:52am
Classmate-Wearing-Yarmulka (www):

Theoretical question: There is a man and a women, husband and wife. Well the man is infertile and thus the marriage has not produced any children. Because the man is infertile family tradition states the man should ask his brother (the wife's brother in law) to try to sire an offspring with the man's wife so the family line can continue. Is such a traditon affected by this law?

Kudos if anybody gets this analogy.


I believe you are talking about Yibbum, but that deals with the situation where a man dies childless, not that he's infertile.
3.2.2007 9:57am
godfodder (mail):
I'm sorry but this is just pathetic. When are judges going to be held to some standard of rationality and consistency? Lawrence v. Texas very much suggested that there was a fundamental right to private sexual expression between two consenting adults. Now, this court turns around and says this form of sexual expression is forbidden... because of the family!

I'm as pro-family as the next guy, but these people are adults. A family is a social unit for raising and civilizing children. When everyone is grown up, what is the compelling state interest? Making sure everyone gets together for holidays?

What is particularly amusing is that all the guy has to do is divorce his wife, and everything is hunky-dory. So... he just has to get divorced, and then his sex life is OK for "the family"? But, then they're not a family anymore, and how is that good for the family? I'm so confused....

This is just more inconsistent, incoherent rule-by-judge. No underlying principle, no way to predict the future behavior of the courts... just a hodge-podge of arbitrary decisions.
3.2.2007 9:58am
Houston Lawyer:
I question whether a divorce would have helped this guy. If the prohibition is based upon the relationship formed between father and step-daughter during his marriage to her mother, his divorce from her mother wouldn't affect that relationship. For all we know, her mother was pimping her out to him.

I never enjoyed family reunions because any interesting girl I met there would be a relative, and therefore unavailable.
3.2.2007 9:59am
rbj:
Hoosier,
Woody Allen was not married to Mia Farrow, nor did he adopt her children. Yes, there is a certain unseemliness to the affair, going after your girlfriend's adult (adopted) daughter, but no incest.
3.2.2007 10:01am
Hoosier:
Classmate:

That's a reference to Levirate Marriage, idnit? (I'm married to a Hebrew philologist, and she's written on this.)

Re: The German Verfassungsgericht-- They will look at what Kant wrote, the law in Borneo, and the Lyrics to "99 Luftbalon" by Nina in order to decide. It's an insane way of deciding what the Basic Law says.
3.2.2007 10:04am
Perry Dane:
In another vein, a true story:

When I was clerking for Justice Brennan, my co-clerks and I once took then-Justice Rehnquist out to lunch. We ended up discussing the hypo of whether it might be unconstitutionally "irrational" to apply incest laws to biologically unrelated, adult, step-siblings who had not been raised together. He actually said that this application of the law might cross the constitutional line. (I'm actually not sure I agree).

Similarly, consider this little dilemma: Imagine two unrelated adults meeting, falling in love, and getting engaged. Their parents happen both to be divorced (or widowed, or single). When the parents meet, they, too, fall into love with each other, and get engaged. Now, as I understand some state laws, if the kids get married first, there is no obstacle to their parents subsequently marrying each other. But if the parents get married first, the adult kids are now barred from marrying. This does seem odd. I still think it's constitutional. But it is odd.

Or am I misunderstanding incest law?
3.2.2007 10:05am
Jon Rowe (mail) (www):
As Eugene and others have pointed out it's always hard to draw precise lines, the result being the court cases, over time, often do lead to "slipping." Sometimes a court has to just say: we are going to draw the line here and that is that for the moment. That is the legal real world that we live in.

And as this decision demonstrates, the power to "slip" is entirely in the hands of the judges themselves, as any particular case's holding can be read as broadly or narrowly as the court desires. Therefore, the notion that because of Lawrence, we must therefore recognize a right to incest is false.

In terms of the practical effects of incest, it has the potential to do far more harm to the family than homosexuality. There is very little choice involved in whether one is a "homosexual" and any damage done to family "the family" results almost entirely from other family members' mistreatment of homosexuals in their family.

Incest on the other hand, unlike homosexuality, is invariably connected with abuse of minor children. And even if the relations are entirely consensual or non-abusive, incest has the potential to release an element of sexual jealously -- again, entirely absent from homosexual relations -- that can seriously harm the family. For instance, a mother should not have to compete with her nubile teenage daughter for the sexual affections of her husband. If the lesson of Woody Allen's example should have taught us anything, it is that.
3.2.2007 10:29am
y:
Like Scalia said, it very much appears that "principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."

There is no way a bunch of lawyers can rationally uphold incest laws because of "family issues" and still strike down sodomy laws. They are not family experts, and I doubt there's conclusive evidence about the effects on "family" of either. Or which type of "family" the state has the right to protect.

They absolutely rise and fall together. The Court, after weighing its views of the policy implications of one vs. the other, just likes one and doesn't like the other. They don't like the rationale of sodomy laws, but that's different from saying that they don't have one (and that somehow incest laws do).
3.2.2007 10:34am
English teacher:
Whether or not this man wants to divorce his wife, I'm rather amazed that she hasn't divorced HIM over this.
3.2.2007 10:45am
baclaw (mail):
Houston Lawyer:

I question whether a divorce would have helped this guy.

The Ohio Supreme Court answered that pretty clearly in the opinion at paragraph 26. "If Lowe divorced his wife and no longer was a stepparent to his wife’s daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."

There is a different aspect of the court's decision which I find interesting. Other commenters have noted that there is a possibility of a coercive element in any stepfather-stepdaughter relationship, regardless of the respective ages of the parties. States have successfully regulated coercive relationships to prevent doctors, teachers, etc. from taking advantage of their clients. Protecting those who are at a disadvantage because of the nature of the relationship from a person with the opportunity to take advantage of his or her power may, therefore, may be a legitimate state interest.

However, this was not the "legitimate state interest" that the court used to validate the statute. Instead, the court found that "protecting the family unit and family relationships" is a legitimate state interest. This is potentially a much broader interest. For example, there does not appear to be any reason to think that anti-adultery laws would not be covered by a similar interest. I'm sure I and others could imagine other ways that the the government coudl use such an "legitimate interest" to gain access into people's bedrooms.

Thus, the part of this decision that I find most troubling is not the outcome, but the rationale used to reach that outcome. I will be curious to see if defense counsel will try to appeal this issue and whether the USSC will find it cert. worthy.
3.2.2007 10:46am
Duncan Frissell (mail):
The National District Attorney's Assn. has a nice chart on the various incest laws:

http://www.ndaa.org/pdf/ncpca_statute_incest_06.pdf

Note that your Sister-in-Law is usually fair game so go to town.
3.2.2007 10:52am
SysAdmin32:
Jon Rowe: "For instance, a mother should not have to compete with her nubile teenage daughter for the sexual affections of her husband."

Why? Why is that an issue? Sexual competition exists in other social settings, why is this vestige of the past, the "family," so sacrosanct?
3.2.2007 10:53am
Spartacus (www):
It seems that the Levirate/Yibbum practice could be indulged by artificial insemination to avoid charges of incest.
3.2.2007 10:54am
Stacy (mail) (www):
Let me toss out one thing nobody seems to have mentioned sofar--what exactly is the nature of the state's legitimate interest in preventing incest? Everything I've ever read on the subject (far from a full survey of the literature, but anyway) says that society needs to prevent inbreeding in order to maintain genetic diversity. Of course people didn't know about DNA until recently, but they could see that inbreeding had serious ill effects that compounded with each generation.

If that is indeed the proper definition of the state's legitimate interest, then I can't see how it makes sense to say it covers an affair between two people who are not blood relatives, regardless of their legal relationship.

I would hope it goes without saying that none of this is any kind of moral defense of the "woody allen example", which is off-the-charts icky, but is there a dimension to incest law that I'm missing? I've never heard it explained in any terms other than prevention of inbreeding...
3.2.2007 10:58am
Perry Dane:
Stacy writes:

Everything I've ever read on the subject (far from a full survey of the literature, but anyway) says that society needs to prevent inbreeding in order to maintain genetic diversity. ... If that is indeed the proper definition of the state's legitimate interest, then I can't see how it makes sense to say it covers an affair between two people who are not blood relatives, regardless of their legal relationship.


The incest taboo, though, is not only legal; it is also cultural and psychological. The relevant question, it seems to me, is whether the law can properly seek to reinforce the cultural and psychological incest taboo, even by drawing lines that seem to go beyond what might arguably be the functional "purpose" of the taboo, whatever that functional purpose is. In other words, is some legal "overbreadth" tolerable as a way of maintaining the cultural and psychological force of the core prohibition.

I would say that, absent some special reason to be constitutionally vigilant, the answer should be yes.
3.2.2007 11:08am
Steve:
It's amusing how many people are upset by this decision simply because the court has declined to validate their slippery slope arguments. "You MUST legalize man-on-dog," they seem to be saying, "so the world can see what a terrible decision Lawrence was." To paraphrase Robert Bork, just because
judges see a slippery slope doesn't mean they have to ski it all the way to the bottom.
3.2.2007 11:14am
James Dillon (mail):
The Seventh Circuit came to the same conclusion a couple of years ago, upholding a conviction for consensual adult incest against a challenge arising from Lawrence. See Muth v. Frank, 412 F.3d 808.
3.2.2007 11:22am
jvarisco (www):
I don't see how you can call incest a victimless crime; even if there are no children, surely the father-daughter relationship cannot be fully consensual. I think the whole chain of reasoning is stupid though - because some of the SC decided homosexuality is not morally wrong (more than half of this country believes that homosexual behavior is always wrong, e.g. here) it has to be allowed. But they still think incest is wrong, so it's not allowed. Where is the objective standard here?

Stacy) One might argue adopted siblings should be allowed to marry, I suppose. But a parent and child? There's no way that is an equal relationship.
3.2.2007 11:41am
Ken Arromdee:
It has always seemed to me that Lawrence has much less to do with sexual liberty or sexual privacy than with a notion of equal dignity. The identity and sense of self of many homosexuals is so deeply connected to same-sex sexual attraction that to deny them any right to engage in same-sex sex is, in effect, to cut off for them the possibility of a complete human life.

By that reasoning we could ban interracial marriages, since most people are not attracted *only* to people of other races. In fact, we could make homosexual activity illegal for people whose orientation is bisexual, for the same reason: you're not eliminating the complete pool of people whom the bisexual is attracted to. (Of course, it would be hard to keep bisexuals from lying and claiming to be homosexual, but ease of enforcement is a different issue.)
3.2.2007 11:53am
Stacy (mail) (www):
jvarisco: "One might argue adopted siblings should be allowed to marry, I suppose. But a parent and child? There's no way that is an equal relationship."

According to the original post, the stepdaughter was an adult. Granted, that could mean she's as young as 18, or as old as, say, 35. I think it's fair to say that our estimate of the equality of the relationship would be different in the one case than in the other.

Anyway, I was mainly concerned with why the state has a legitimate policy interest in banning "incest" between (nominally) consenting adults whose relationship is legal not biological. On that score I'll take Perry Dane's explanation of how lawyers see it, although I am not sure I personally buy the logic. The point is that the courts do buy it, which is what I was asking.
3.2.2007 12:01pm
Perry Dane:
Ken Arromdee wrote:

By that reasoning we could ban interracial marriages, since most people are not attracted *only* to people of other races.


-- Except that there are other excellent reasons to strike down bans on interracial marriages, in particular that they constitute a form of racial discrimination and subordination.

I do think that this conversation has highlighted a real difference between a certain type of liberal and a certain type of libertarian. I believe that the constitution does, and the courts should, aggressively protect certain core principles, such as equal human dignity, racial non-subordination, freedom of religion, whatever. But I don't believe that every law that the courts should strike down every law that doesn't comport to some mechanical standard of instrumental rationality. And I also believe that, unless it violates some core principle such as equal human dignity, society does have the right to take the "ick factor" into account in writing its laws. So I think that
Lawrence is correctly decided, but so is Lowe.
3.2.2007 12:04pm
William Tanksley (mail):
Why? Why is that an issue? Sexual competition exists in other social settings, why is this vestige of the past, the "family," so sacrosanct?


You choose consistently loaded words. Sacrosanct refers to spiritual consecration; vestige implies current uselessness. You make strong claims, and should provide strong support.

In the absence of legal support, it's not the judge's job to determine which institutions are 'vestiges of the past' and which are vestiges of the future (or appendages of the present, or whatever). The family exists in law; the judge must apply that law.

I'm not making any claims about this decision. I just think your comment should be either elucidated or abandoned.
3.2.2007 12:06pm
Cornellian (mail):
There is no way a bunch of lawyers can rationally uphold incest laws because of "family issues" and still strike down sodomy laws.

Easy distinction. Incest laws protect a child from being coerced into a relationship with the child's parent. Sodomy laws have nothing to do with that. Incest laws don't stop at age 18 because turning 18 doesn't magically shed the baggage of one's upbringing.
3.2.2007 12:13pm
Stacy (mail) (www):
Perry Dane: "And I also believe that, unless it violates some core principle such as equal human dignity, society does have the right to take the "ick factor" into account in writing its laws. So I think that "

Now I think I see why I'm hesitating at this principle. That's a highly subjective standard, or at least highly dependent upon the definition of "core principals" (constitutional rights?) Also, where you say "mechanical standard" I would say "reasonable nexus" relating the law to the policy goal. If our hypothetical state wants to ban all sexual contact between biological and/or legal relatives, that may be fine but I think the text of the law would need to either
1) Explicitly include both types of relatives, or
2) Invoke some definition of the government's rationale for banning incest that covers the 'ick factor' in addition to the public health basis.

Again, IANAL so if I'm missing something else that plays into this, by all means correct me.
3.2.2007 12:24pm
eddy:

"If Lowe divorced his wife and no longer was a stepparent to his wife’s daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case."

Presuming there was no adoption, would the stepparent-stepchild relationship also be dissolved upon the death of the spouse?
3.2.2007 12:33pm
Insignificant Dallasite:
Stacy, from the opinion quoted above:

. . . as applied in this case, [the statute] bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren.
I think there is clearly a difference between a vanilla extra-marital affair, and sex with your step-daughter. It's actually a bit disturbing that some don't see that. One is merely abandoning the marital relationship. The other is continuing in the relationship while battering it beyond repair. You're allowed to fall in love with your step-daughter. You just can't proceed to boffing her while you are still married to her mom.

I'm interested in the rationalization of the posters who are sure that incest between "consenting" adults is OK, even when the adults are in unequal positions. We let parents decide what is best for their children every day. Even when those decisions are objectively not the right thing, in most cases we uphold the parent's right to make the choice. If step-father, step-daughter sex is OK, why does it matter that the step-daughter is of age? Why not allow the mother to consent on her behalf? What's the purely legal and logical argument against that?
3.2.2007 1:10pm
Steve H (mail):
I was thinking along the lines of what Stacy wrote at 12:01. If the step-father married the mother when the step-daughter was 5 or 6, acted as her father for years, and then had sex with her the day she turned 18, that would have a huge ICK factor. That's child abuse, no matter how "voluntary."

But if the step-daughter was already an adult (and I mean a real adult, not an 18-year-old) when the marriage happened, the ick factor is less compelling, particularly if the step-father married an older woman to start with, so that the step-daughter was somewhat close to the step-father's age.
3.2.2007 1:15pm
Clayton E. Cramer (mail) (www):
Jon Rowe:


In terms of the practical effects of incest, it has the potential to do far more harm to the family than homosexuality.
Another one of those moralists out to impose his narrow point of view on others! Where's your rational basis for this claim? All I see is someone trying to impose Judeo-Christian morality on a poor, victimized minority! (And yes, this is sarcasm.)

There is very little choice involved in whether one is a "homosexual" and any damage done to family "the family" results almost entirely from other family members' mistreatment of homosexuals in their family.
Odd. Most families that I have known with homosexual children are profoundly supportive of it.

Incest on the other hand, unlike homosexuality, is invariably connected with abuse of minor children.
It wasn't in this case. So why didn't the judges strike down the law and tell the legislature to rewrite it to apply only to children? Because they just know that incest is morally wrong--and are prepared to keep it criminal--unlike the Lawrence case.
And even if the relations are entirely consensual or non-abusive, incest has the potential to release an element of sexual jealously -- again, entirely absent from homosexual relations -- that can seriously harm the family. For instance, a mother should not have to compete with her nubile teenage daughter for the sexual affections of her husband. If the lesson of Woody Allen's example should have taught us anything, it is that.
This reads just like the arguments that homosexuality "has the potential" to lead to molesting little boys or rape or the spread of AIDS.

If it is wrong to have our laws reflect the dominant moral code, rather than requiring a "rational basis," then all sorts of laws have to go away: bestiality; incest (at least involving adults); polygamy; marrying animals. But to argue for laws based on "ick factor" shows that Lawrence wasn't based on any rational theory of what the law should be, but just "we want this."
3.2.2007 1:18pm
John Burgess (mail) (www):
I see a jumping to conclusions on the circumstances of an incestuous relationship. All seem to assume a minor child in some sort of abusive relationship.

How about the guy who marries a woman, but gets the hots for her 35-y/o daughter. The law prohibits a sexual relationship under incest laws. But this is not an issue of a minor child being abused.

The issue of 'inbreeding' may or not matter. Birth control's been around for a while, after all. And first cousin marriages, while nominally prohibited by law, happen with a certain regularity in the US. There are state mechanisms to approve such marriages and various churches also have waiver mechanisms.

The state may declare and the courts affirm that there is a general interest in preventing incest that may not apply to all specific cases, but they should publicly recognize that they are encumbering the behavior of consenting adults to further that interest.
3.2.2007 1:19pm
Clayton E. Cramer (mail) (www):

I see a jumping to conclusions on the circumstances of an incestuous relationship. All seem to assume a minor child in some sort of abusive relationship.

How about the guy who marries a woman, but gets the hots for her 35-y/o daughter. The law prohibits a sexual relationship under incest laws. But this is not an issue of a minor child being abused.
There are many laws that are either drawn more broadly than they should be, or where the perceived injury from the exceptions doesn't justify a more narrowly written law. A good example is the prohibition on convicted felons being in possession of a firearm. Yes, a there is a rational basis for prohibiting a convicted violent felon from possession of a firearm. But what about someone convicted of turning back odometers on cars? Is there any rational basis for prohibiting that person from firearms possession? No, but there is a perception that the small number of people injured by an overly broad law on this aren't worth worrying about.

The issue of 'inbreeding' may or not matter. Birth control's been around for a while, after all. And first cousin marriages, while nominally prohibited by law, happen with a certain regularity in the US. There are state mechanisms to approve such marriages and various churches also have waiver mechanisms.
A number of states allow first cousin marriage--in fact, a majority. I'm not sure that this is wise (as some of the Colorado City inbreeding examples demonstrate), but that's a matter for the state legislatures to decide, not the courts.

The state may declare and the courts affirm that there is a general interest in preventing incest that may not apply to all specific cases, but they should publicly recognize that they are encumbering the behavior of consenting adults to further that interest.
So are you acknowledging that Lawrence decision should lead to a striking down of this overly broad incest law?
3.2.2007 1:45pm
y:
Don't forget homosexual incest, which wouldn't result in offspring.

I don't think any court should strike down incest laws, but that just shows how intellectually bankrupt Lawrence was. It set up the slippery slope that the courts will have to resist skiing down.

I don't know if that "compromise" on the slope is good or bad, or whether based on the number of cases of sodomy vs. incest, or their effects, or the percentage chance of it wrecking a marriage or family or of involving coercion makes a difference. All I know is that the Court has never made a habit of cutting such policy-minded compromises over issues that aren't enumerated in the Constitution, and they shouldn't have done it in Lawrence.
3.2.2007 1:47pm
Hovsep Joseph (mail) (www):
I'm sympathetic to the dissent in this case, but I think a decent argument can be made that policing adult incestual relationships is rationally related to protecting children from abusive family situations. If it is known that after age of consent, little Suzy is fair game for family members to go after sexually without fear of criminal liability, a father or brother who is inclined to abuse her may sexualize the child growing up in ways that fall short of physical sexual abuse but effectively prep her for a legal-but-abusive sexual relationship after she reaches a certain age. That seems to me a rational concern (a la Woody Allen), though I'm not familiar enough with incest to know the actual incidence this kind of dynamic or how that incidence compares to the number of truly consensual victimless adult incestual relationships.

I think the generic "protecting the family unit" when all members of the unit are adults is a pretty unpersuasive rationale, except to the extent that its actually geared to protecting children of the family unit while they are children.
3.2.2007 1:55pm
Michael B (mail):
"Easy distinction. Incest laws protect a child from being coerced into a relationship with the child's parent. Sodomy laws have nothing to do with that. Incest laws don't stop at age 18 because turning 18 doesn't magically shed the baggage of one's upbringing." Cornellian

Incest doesn't need to be biological parent/child. It can be biological siblings, non-biological siblings, non-biological parents or biological or non-biological grandparent/grandchild. E.g., the case at hand, also the German case noted above as well.

Too, incest laws that pertain to siblings often (typically?, always?) don't begin until some other minimal age.

"... Sacrosanct refers to spiritual consecration; vestige implies current uselessness. You make strong claims, and should provide strong support.

"In the absence of legal support, it's not the judge's job to determine which institutions are 'vestiges of the past' and which are vestiges of the future (or appendages of the present, or whatever). The family exists in law; the judge must apply that law." W.T.

Sacrosanct - common usage and formal definition - doesn't need to refer to "spiritual" consecration, it can and often does refer to something that is treated as if it is beyond discussion, dispute, critique, violation, etc.

What was being addressed was not the law in its present state, rather, what was being addressed was the moral/ethical justification which undergirds the law in its present and historical role; it was rhetorical and moral, not directly legal per se. Every law is a reflection of society's moral/ethical concerns, i.e. that portion or subset of society's moral/ethical concerns which society additionally believes to be worthy of legislative/legal attention and redress.
3.2.2007 2:12pm
Michael B (mail):
Correction regarding the present case, which is step-father/daughter. Was thinking of the German case solely.
3.2.2007 2:14pm
Perry Dane:
I want to come back to my original point. The law, it seems to me, can (unless there is some good reason to the contrary) reinforce the legitimate behavioral norms by enforcing them even in cases to which the underlying rationale for those norms don't strictly apply.

For example, should the law be able to punish someone who ran a red light when (1) visibility was ideal, (2) the offending driver first made a full stop and looked in all directions, and (3) there were no other cars anywhere in sight? The answer is of course, if for no other reason than that persons should not get in the habit of running red lights, regardless of the circumstances, and society has a legitimate interest in trying to get drivers to internalize the norm against running red lights.

The law, it seems to me, can legitimately conclude that, once the incest taboo is weakened, it will erode across the board. That, even without additional arguments, justifies enforcing the taboo even in cases to which the rationales for the taboo (and those rationales are themselves multiple, varied, and complicated) might (emphasize on "might") not strictly apply.

My argument does not apply, as I said, when there's some other principle involved. But what's the other principle here?
3.2.2007 2:17pm
Clayton E. Cramer (mail) (www):

The law, it seems to me, can legitimately conclude that, once the incest taboo is weakened, it will erode across the board. That, even without additional arguments, justifies enforcing the taboo even in cases to which the rationales for the taboo (and those rationales are themselves multiple, varied, and complicated) might (emphasize on "might") not strictly apply.

My argument does not apply, as I said, when there's some other principle involved. But what's the other principle here?
So why doesn't this apply to Lawrence as well? Look, I don't see any strong argument for telling two homosexual adults what they can do in private. But that's not the same as ruling that it is constitutionally protected behavior. There are all sorts of laws that we accept that tell consenting adults what they can do in private, and just like homosexuality, you can construct (without even much effort) many unfortunate consequences of those private actions. Incest disproportionately leads to birth defects. Even incest involving non-blood relatives (such as this case) certainly can lead to some disturbing degradation of family structures (as both Cornellian and Jon Rowe have pointed out).

Private employment discrimination based on race is again a consenting adults in private action, but it has consequences that affect the entire society.

Male to male anal sex accelerates the spread of AIDS in a way that male to female anal sex does not.

A consistent application of the individualist Lawrence theory that laws must have a rational basis will strike down all sorts of laws, making our society a considerably uglier and less pleasant place to live. Refusing to apply it consistently allows the "ick factor" to determine which laws are Constitutional and which are not. If judges are going to use the "ick factor" to decide which laws are Constitutional and which are not (which is clearly the situation in this case), why aren't state legislatures allowed to do so as well?
3.2.2007 2:29pm
BobNSF (mail):
I wonder how many conservatives now wish that the Court had issued a much more narrow decision in Lawrence, i.e. that unequal treatment of gay people is unconstitutional and that we are a suspect class.
3.2.2007 2:50pm
BobNSF (mail):
All of this would have been avoided had the Court issued a much more narrow decision in Lawrence, i.e. that unequal treatment of gay people is unconstitutional and that we really are a suspect class.
3.2.2007 2:51pm
Eugene Volokh (www):
Justice Stevens: I got, rather to my surprise, an e-mail from a reader thinking that you are the Justice Stevens. I assume you are either Judge Reinhold's cousin, or were using Justice Stevens as an obvious nom de plume, and I had thought everyone would take the same view. Yet I was apparently mistaken. And in fact we have once had a judge -- also an academic -- post a comment (on a post related to his scholarship), so perhaps some others might likewise erroneously assume that you're the man with the bow tie.

It therefore seems to me if it might be best for you to rename yourself. I'm not positive this is necessary, since I expect that misunderstandings about this will be rare indeed. But it still seems to me worthwhile to avoid these misunderstandings. (I would have taken a different view as to, say, parodies, where there's a lot -- whether insight or entertainment -- gained from a literally false description, so that the risk of a few people being misled is relatively small in comparison. But here it seems to me little profit from the name, other than, I take it, something of an homage to Justice Stevens.)
3.2.2007 2:53pm
Ramza:

I wonder how many conservatives now wish that the Court had issued a much more narrow decision in Lawrence, i.e. that unequal treatment of gay people is unconstitutional and that we are a suspect class.
And risk things such as gay marriage or non discrimination laws, NEVER (in the conseratives minds). No such conseratives which right now are complaining(not critiquing) Lawerence are the same ones who bemoan daily why did Bush Sr do Souter instead of Edith Jones or they wish Robert Bork just kept his trap shut, until after he was on the court. They reject your possible scenario for in their mind they rather have other events occured in history and thus the paradigm would be different.
3.2.2007 2:55pm
IANAD:

There is no way a bunch of lawyers can rationally uphold incest laws because of "family issues" and still strike down sodomy laws.

Easy distinction. Incest laws protect a child from being coerced into a relationship with the child's parent. Sodomy laws have nothing to do with that. Incest laws don't stop at age 18 because turning 18 doesn't magically shed the baggage of one's upbringing.


These incest laws also prevent relationships between adult children whom have never known their biological parent's new spouse; between siblings biological/step/adopted; and between siblings-in-law.

I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?
3.2.2007 3:01pm
jvarisco (www):
Bob) How would that have been more narrow? Creating broad equal treatment rights for an entire class of people out of nothing? Something like 1/4 of states currently prevent discrimination based on sexual orientation. That leaves 3/4 that don't. This includes the federal government; nowhere is sexual orientation protected in the Constitution. Barely have of the states prevent such discrimination for state employees. Such a holding would have been much more broad than Lawrence, and much worse.
3.2.2007 3:19pm
Toby:
“What is the interest of Society in In-breeding…”

More than fundamentalist Islam Sects, more than poverty, many feel that the real problem with the middle east is tribalism – and that tribalism is not consistent with a civil society.

Europe descended completely into tribalism for a long time. These were not small matters, limited to a few picturesque families in Florence. Cansider most of the Capetian history in France. Consider the hundreds of years of war between the Guelphs and Ghibellines, which spanned so far that the name Fitzgerald identities ones families as allies of the Ghibellines, not as an interesting Swords and Dirt Hollywood extravaganza, but as tribalism, or perhaps think of one as the House of Saud, and the other as the Ticritis of Iraq.

One of the strongest markers for tribalism is inbreeding. The tendency in many countries throughout the Middle East for the daughter to be married off to an Uncle, or to a cousin, has been considered one of the greatest re-enforcers for tribalism, with an associated mistrust of society, of anyone outside ones neighborhood and mosque. It is unclear how any understanding of the genetics of kinships affects this.

Europe spent 400 years breaking tribalism by progressive expansion of rules against incest to encourage out-breeding, and membership in a greater society. This is no doubt the “remnant of an earlier age” cited by the German couples defender.

Believing that Society has no legitimate interest in this shows a profound ignorance of history. Convincing oneself that we are now all “new men” and freed from all constraints is merely foolish. Asserting that whatever the great Id wants is socio-pathologically narcissistic.

Bring on the Hatfields and McCoys. WooHoo!
3.2.2007 3:27pm
Attila (Pillage Idiot) (mail) (www):
In the Harvard Law Review, circa 1980, there was a student "Developments" article arguing that incest laws violated substantive due process. As I recall, it was pretty shocking at the time. My, how times have changed!
3.2.2007 3:32pm
baclaw (mail):
IANAD:

I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?


Very generally speaking, a law must further a legitimate state interest in order to pass constitutional muster. In some cases, the law must be narrowly drafted in support of that interest. In others -- not so much.

In this case, the Ohio Supreme Court did not find that the law was in place because of the coerciveness of many incestuous relationships, the reason which some could argue may not apply in some situations covered by the statute. Indeed, this was the dissent's point of view -- that the statute focuses on coercion and that this is bad because not all situations covered by the law are coercive.

However, this was not the basis for the court's opinion. Instead, it found that the law was for "protecting the family unit and family relationships" - whatever this means. That concern, of course, does not go away merely because everyone is a consenting adult. But it also applies to many other things which the government could choose to regulate.

By the way, the girl in this case was 22. There is no indication in either the Ohio Supreme Court opinion or that of the underlying appellate court of her age when the mother and stepfather married.
3.2.2007 3:35pm
Diane Fitzsimmons:
The case is far more complicated. She says the sex was not consensual, according to a story in The Richmond Palladium-Item:

The court ruled Wednesday against former Stark County Sheriff's Deputy Paul Lowe, 42, when his 22-year-old stepdaughter accused him of having sex with her in 2003 while she was passed out after a night of partying. He claimed the sex was consensual.

Lowe pleaded no contest to sexual battery in 2004. Lowe's attorney, J. Dean Carro, asked the Ohio Supreme Court to overturn the conviction, saying the incest law was ambiguous and inconsistent. He said consenting adults have a right to personal intimacy.
3.2.2007 3:45pm
Esquire:
Umm...this is out of my legal field, but aren't most laws regarding "consensual" sex in the realm of *tort* rather than criminal law? People who say that power-disparity relationships cannot be "truly" consensual couldn't really mean that the way it sounds, because 1) nobody actually equates the tort of "sexual harrassment" (for example) with "rape," and 2) there's practically no such thing as two people who are completely of equal status in every way. So while the state may indeed have a valid interest in protecting people from various abuses of authority (or other potentially-problematic situations), I wonder if it can only *criminalize* those cases where there is an *actual* lack of consent (assuming legal adulthood, of course), as opposed to a *potential* for lack of consent...

I recall that Texas recently passed a law against teachers having sex with students (even if they're over 18), and they actually brought a case against a 25 year old female teacher for having a relationship with an 18 year old male student (I don't remember if he was in her class at the time or not.) I think the case has been dropped because it struck too many people as unduly intrusive in the private lives of consenting adults. Many legal commentators said she should be fired, and even SUED, but not criminalized...
3.2.2007 3:45pm
Randy R. (mail):
Clayton: Male to male anal sex accelerates the spread of AIDS in a way that male to female anal sex does not. "

Yup. And male to female sex accelerates herpes, HPV, clamydia and many other STDs in a way that male to male anal sex does not.

Additionally , female to female sex doesn't accelerate anything, which is why lesbians have among the lowest rates of AIDS in the world.

Perhaps then, based on your argument, hetersexual sex should be more tightly regulated than homosexual sex, and lesbian sex should be the form that government should promote.

BTW, you would also have the backing of scripture, since there are over 300 admonisments regarding heterosexual sex vs. only a few regarding homosexual sex. So James Dobson &Co. would be all in favor!
3.2.2007 3:53pm
Randy R. (mail):
y: All I know is that the Court has never made a habit of cutting such policy-minded compromises over issues that aren't enumerated in the Constitution, and they shouldn't have done it in Lawrence."

And the Court didn't. In fact, if you read the Constitution, you will find the words' due process of law.' The Court held that gay people, ALL citizens in fact, have a right to due process of law. All gay people, ALL citizens in fact, have equal protection under the law. (EP, for your information, is also in the Constitution). The Court said you cannot deny someone DP or EP based solely upon animus towards that class. Therefore, you cannot subject gay people to any law that doesn't also apply to straight people, nor can you deny rights to gay people that you give to straight people, unless there is a valid state interest. Mere animus is not enough.

What part of that do you disagree with?

The problem wasn't the Court cutting out new policy: The problem was the Texas legislature cutting new policy, which was to discriminate against a group of people merely because they don't like them.
3.2.2007 4:00pm
Cornellian (mail):
Easy distinction. Incest laws protect a child from being coerced into a relationship with the child's parent. Sodomy laws have nothing to do with that. Incest laws don't stop at age 18 because turning 18 doesn't magically shed the baggage of one's upbringing.



These incest laws also prevent relationships between adult children whom have never known their biological parent's new spouse; between siblings biological/step/adopted; and between siblings-in-law.


The problem is that if you try to carve out an exception for once the person turns 18, you'll get the situation of the perpetrator coercing the victim from 16 onwards (or even earlier) such that you'll really not going to have a valid consent at 18. If you try to carve out an exception for siblings who don't know each other, you'll get situations where they spoke a few times on the phone, or saw each other once at a large gathering without realizing they're related. It's really hard to carve out an exception without getting into really hard cases, so the choice is to go with a clear rule which applies in the vast majority of cases. It's pretty much another rules versus standards things. You could go the other way and allow such relationships on a demonstration of no harm, however one wants to define that. The downside is you'd have to adjudicate a lot of really tough cases, you'd probably get a certain amount of cases involving coercion that's hard to prove and that sort of thing.

I'm not a lawyer, but isn't it pretty standard that when the legal basis for a law that does not provide for situations where the basis does not apply usually get struck down (for example, anti-abortion laws that don't provide exceptions for rape/maternal health)?

It's not standard at all. Sometimes statutes that partially violate constitutional provisions have to be narrowed in some way so that they're no longer violating the constitutional provision, but that's a very complicated subject that varies a lot depending on the type of statute, the constitutional provision in question and the nature of the partial violation. There isn't any general rule that a legislature can't be overbroad in enacting laws. A legislature can enact a speed limit of 60 mph that will apply even in situations where it's perfectly safe to drive 65 mph.
3.2.2007 4:00pm
whit:
actually, randy

if you are going to bring the bible into it

the bible makes NO mention of lesbian sex whatsoever

it makes mention (negatively) of MALE ON MALE homosexual sex.

not lesbian sex.

so, those who are using the biblical argument thang could be against male homosexuality, but not lesbianism, since the latter is not even mentioned in the bible.
3.2.2007 4:01pm
Cornellian (mail):
Mere animus is not enough.

The current solution to this little constitutional speedbump is that you solve the problem by saying "it's not animus, it's values." QED
3.2.2007 4:04pm
Clayton E. Cramer (mail) (www):
BobNSF writes:


All of this would have been avoided had the Court issued a much more narrow decision in Lawrence, i.e. that unequal treatment of gay people is unconstitutional and that we really are a suspect class.
I think you meant that in the opposite sequence--suspect class leads to unequal treatment being unconstitutional.

There are several problems with this approach:

1. The notion of "suspect class" developed because the targets were blacks, and segregationists, for many decades, had the best lawyers. (The best lawyers work for those with money, obviously.) Racial discrimination was clearly the target of the 14th Amendment, even if the language used in the equal protection and due process clauses wasn't specific to race. No one seriously thinks that the 14th Amendment was adopted to protect the rights of homosexuals from discrimination. (Well, maybe the sort of idiots who think laws that discriminated against homosexuals were a 20th century inventiion.)

2. Some of the state laws prohibit oral and anal intercourse without regard to the sex of the parties. Idaho, for example, still has a descendant of Henry VIII's buggery statute on the books, which applies to both heterosexual and homosexual couples (as well as interspecies loving relationships). These laws would be pretty well safe against such an approach.
3.2.2007 4:08pm
luagha:
Clayton: Male to male anal sex accelerates the spread of AIDS in a way that male to female anal sex does not. "
---
I must say I was unaware of this exactly. How do you figure?
If a male with AIDS anally penetrates an uninfected female without a condom, the uninfected female is just as likely as an uninfected male in that position to suffer the small rectal tears generally necessary for the AIDS virus to be transmitted.

If an uninfected male anally penetrates a female with AIDS without a condom, she is just as likely to suffer the small rectal tears as would a male AIDS sufferer in her position, which then backflows into the uninfected male's penis for eventual infection. (or a certain probability thereof).

Do you refer perhaps that if a male with AIDS infects a female via anal sex, that female is not as likely to continue infecting others since she will usually be having vaginal sex, with a far lesser degree of transmission? I'm not certain there's good data on that - from the example we already know that she's willing to have anal sex.
3.2.2007 4:37pm
BobNSF (mail):
jvarisco:

How would that have been more narrow?


Paraphrasing: "wherever there are laws regulating heterosexuals, those laws must regulate homosexuals equally" is hardly more broad than "all consenting adults can do what they want" (exaggerating).


Creating broad equal treatment rights for an entire class of people out of nothing?


Ooooo... "equal treatment" how scary!!!

There have been plenty of state rulings that find the result I would have preferred. Whether you agree with them or not, to argue that they are "out of nothing" is just silly.
3.2.2007 4:41pm
Clayton E. Cramer (mail) (www):

Do you refer perhaps that if a male with AIDS infects a female via anal sex, that female is not as likely to continue infecting others since she will usually be having vaginal sex, with a far lesser degree of transmission? I'm not certain there's good data on that - from the example we already know that she's willing to have anal sex.
She much less likely to transmit it to another male who has sex with her. I'm not saying that there's no risk, but it is certainly greatly lessened. If male recipients of anal sex never had penetrative sex with others, the risk of passing it on would be a lot lower.

Obviously, a female recipient of anal sex can pass AIDS on to men who have sex with her, or who share needles with her, but the risk on this seems a bit less certain than male recipients of anal sex having penetrative sex with other men.
3.2.2007 4:43pm
Clayton E. Cramer (mail) (www):
BobNSF writes:

Ooooo... "equal treatment" how scary!!!
Nearly all of our laws discriminate. The laws against robbery discriminate against those who take the property of others by force or the threat thereof. Our gun control laws discriminate against convicted felons, against minors, against U.S. citizens that have given up their citizenshp. School attendance laws discriminate against (or you might argue, in favor of) minors. They discriminate based on geography--you can't send your kid to a certain school unless you live in that district. Our laws discriminate based on age as to what public offices you may hold. Our laws discriminate against people who drive with more than a certain amount of alcohol in their blood--even if they haven't hit anyone yet!

The entire basis of law is discrimination based on criteria established legislative bodies and in some cases, by federal and state constitutions. The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.

Now, you certainly regard discrimination based on sexual orientation as wrong. I would certainly agree that in many situations, it is wrong, and with a few exceptions, I don't regard such discrimination as particularly sensible. But equal protection of the law means quite a bit less than you think.
3.2.2007 4:49pm
BobNSF (mail):
Clayton:

I think you meant that in the opposite sequence--suspect class leads to unequal treatment being unconstitutional.


Had I intended to indicate sequence, I would have used something other than a simple "and".


No one seriously thinks that the 14th Amendment was adopted to protect the rights of homosexuals from discrimination.


I'm one of those idiots who thinks that they would have said "race" if they had meant it.


2. Some of the state laws prohibit oral and anal intercourse without regard to the sex of the parties. Idaho, for example, still has a descendant of Henry VIII's buggery statute on the books, which applies to both heterosexual and homosexual couples (as well as interspecies loving relationships). These laws would be pretty well safe against such an approach.


And, if they were applied equally, Idaho would have a lot fewer people wandering about -- they'd either leave or be in jail. Something I and the wildlife wouldn't mind a bit. More likely, the antiquated law would be repealed, thus rendering you a non-criminal.
3.2.2007 4:52pm
Clayton E. Cramer (mail) (www):
Randy R. writes:


Clayton: Male to male anal sex accelerates the spread of AIDS in a way that male to female anal sex does not. "

Yup. And male to female sex accelerates herpes, HPV, clamydia and many other STDs in a way that male to male anal sex does not.
Wrong. Gay men manage to spread herpes, and while men are far less at risk from HPV, they aren't completely safe. A friend works with someone whose HPV infection has required repeated surgeries on his throat to remove cancers--and he has now gone through the lifetime cap of his health insurance, and has to pay for it himself.

Most importantly, syphilis is almost entirely a male homosexual disease now. There are straights who get it, but they are typically a minority of all cases.

Additionally , female to female sex doesn't accelerate anything, which is why lesbians have among the lowest rates of AIDS in the world.
This is popularly believed, but it turns out that there have been some cases reported in CDC's Morbidity and Mortality reports on AIDS of female-to-female sexual transmission. At least one study of IV drug abusers found that about 30% were lesbians, so this is not surprising.

Perhaps then, based on your argument, hetersexual sex should be more tightly regulated than homosexual sex, and lesbian sex should be the form that government should promote.
There's no constitutional problem with the government prohibiting adultery (and some states still have such laws on the books: Idaho, for example), or premarital sex, and reducing STDs would be a legitimate state interest in doing so.

Let me know when homosexuals are 4% of the STD cases, okay?
3.2.2007 4:55pm
Randy R. (mail):
Whit: The bible makes NO mention of lesbian sex whatsoever"

Perhaps not. From The Guardian (UK):
"But even the David and Jonathan stories cannot rival the story of Ruth and Naomi. Ruth's declaration of love for Naomi is not only one of the finest and most profound in the Bible, it is the only speech in scripture that approaches our wedding vows. Indeed it goes beyond them, exceeding the promise of "till death do us part". And it brings Naomi back to life. Naomi is sunk in bitter grief and despair, but as the story unfolds we witness her resurrection, until at the end the women of Bethlehem celebrate her and Ruth as a couple, and declare of the child born to Ruth and Boaz: "A son has been born to Naomi", as if Naomi is the father and the husband."
3.2.2007 4:58pm
BobNSF (mail):

The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.


And, as we all know, discrimination based on religion is just fine...


But equal protection of the law means quite a bit less than you think.


And, fortunately, a great deal more than you think it does.
3.2.2007 5:00pm
Randy R. (mail):
Clayton, I'm not sure of your point. Are you suggesting that male to female sex results in little or no STDs? As a percentage, and in absolute numbers, that type of behavior transmite more STDs than HIV. According to WHO stats, 80% of all people in the world who have AIDS are heterosexuals.

So based upon your theory, we really should be regulating hetero sex more than gay sex.

Of course, my point is that this is all ridiculous -- sex should not be regulated based on who gets people more ill than others. It's a silly argument, and I'm rather surprised you keep trying to raise that as a reason. But even if you do, you have to admit that the world has far more to fear from hetero sex than homo sex. Not the least is that the latter never results in unwanted or unprovided children.
3.2.2007 5:04pm
Clayton E. Cramer (mail) (www):

No one seriously thinks that the 14th Amendment was adopted to protect the rights of homosexuals from discrimination.
I'm one of those idiots who thinks that they would have said "race" if they had meant it.
Yup, you said it. It is beyond question that the concerns behind the 14th Amendment were almost entirely about race, with perhaps some secondary concern about protecting native Unionists and Northerners who had gone South after the Civil War. Considering what the laws were concerning homosexuality at the time, you might has well argue that they were trying to protect the rights of armed robbers and polygamists, with about as much logic.

2. Some of the state laws prohibit oral and anal intercourse without regard to the sex of the parties. Idaho, for example, still has a descendant of Henry VIII's buggery statute on the books, which applies to both heterosexual and homosexual couples (as well as interspecies loving relationships). These laws would be pretty well safe against such an approach.
And, if they were applied equally, Idaho would have a lot fewer people wandering about -- they'd either leave or be in jail. Something I and the wildlife wouldn't mind a bit. More likely, the antiquated law would be repealed, thus rendering you a non-criminal.
How many prosecutions have there been against homosexuals under that law? I mean, aside from guys arrested in public restrooms?

I agree that vigorous and equal enforcement of this law would rapidly lead to its repeal. But unless you are doing something in a public place, or leave the blinds open and the neighbors complain (which would likely lead to a public indecency charge, in any case, as it should), these laws are not enforced. How would you get evidence? The Lawrence case was quite unusual in how their actions led to an arrest.
3.2.2007 5:06pm
Michael B (mail):
"Bring on the Hatfields and McCoys. WooHoo!"

Actually, a couple of consensually minded Hatfields, without the McCoys, or vice versa, is the issue at hand.
3.2.2007 5:06pm
Clayton E. Cramer (mail) (www):

Clayton, I'm not sure of your point. Are you suggesting that male to female sex results in little or no STDs? As a percentage, and in absolute numbers, that type of behavior transmite more STDs than HIV. According to WHO stats, 80% of all people in the world who have AIDS are heterosexuals.
You seem to have some trouble reading what I am saying. I do NOT support laws that regulate what consenting adults do in private. I've said tha repeatedly. But that is not the same as saying that all such laws are contrary to the Constitution.

In the U.S. (you know, where U.S. laws apply), AIDS is overwhelmingly the result of two actions: homosexual promiscuity, and IV drug abuse--typically 85% of more of all AIDS cases has one of those two factors.

So based upon your theory, we really should be regulating hetero sex more than gay sex.
Once again, someone needs to learn to read. The government certainly has the authority regulate sexual behavior based on concerns about public health and order. Whether it does so, and how it does so, are separate issues from whether it may.

Of course, my point is that this is all ridiculous -- sex should not be regulated based on who gets people more ill than others. It's a silly argument, and I'm rather surprised you keep trying to raise that as a reason.
Except that I have not been making that argument. My point is that public health might be a valid basis for governmental regulation of private activity, and homosexual actions are certainly higher risk for deadly STDs than heterosexual actions, relative to their fraction of the population. That alone could justify differences in how the laws are written.


But even if you do, you have to admit that the world has far more to fear from hetero sex than homo sex. Not the least is that the latter never results in unwanted or unprovided children.
Hence the Constitutionality of laws against adultery and premarital sex.
3.2.2007 5:11pm
jrose:
I'm not persuaded that proscriptions against incest between an adult step-child and step-parent who didn't know each other until after the child was 18 is rationally related to "protecting the family". On the other hand, I can see that rationality if the step-child was raised by the step-father.
3.2.2007 5:25pm
Baby-M (mail):
There's some details of the incident in the local news that aren't reflected in the Ohio S. Ct. opinion:

Lowe was up late playing video games and the victim told investigators that she was drunk and passed out on the couch. She awoke four hours later when she felt Lowe on top of her, the report said.

The victim said she confronted Lowe a couple of days later, but he claimed he had been drunk that night and didn’t remember anything.

. . .

When questioned by investigators, Lowe admitted having sex with the woman, but claimed it was consensual. . . .


Doesn't sound terribly consensual to me.
3.2.2007 5:41pm
Cornellian (mail):
Yup, you said it. It is beyond question that the concerns behind the 14th Amendment were almost entirely about race

The Framers enacted the Fourteenth Amendment, they didn't enact "the concerns behind the 14th Amendment." The 14th Amendment was drafted broadly for a reason.

I think the Framers had more foresight that you give them credit for in drafting the 14th Amendment, and not even Thomas, the only originalist on the Supreme Court, would agree with you that the 14th Amendment has no application at all except in cases of racial discrimination.
3.2.2007 5:42pm
Cornellian (mail):
I'm not persuaded that proscriptions against incest between an adult step-child and step-parent who didn't know each other until after the child was 18 is rationally related to "protecting the family". On the other hand, I can see that rationality if the step-child was raised by the step-father.

The problem is you can't just enact an exception for cases where the perpetrator didn't know the step-child until the step-child was already 18 without getting a lot of borderline cases over "didn't know." Suppose they lived in different houses but each was aware of the other's existence? Suppose they spoke, but only over the phone and only two or three times? Suppose they saw each other in some public place but didn't speak?
3.2.2007 5:47pm
Ken Arromdee:
persons should not get in the habit of running red lights, regardless of the circumstances, and society has a legitimate interest in trying to get drivers to internalize the norm against running red lights.

The difference is that telling people not to run safely runnable red lights poses only a minor inconvenience to any specific person; the inconvenience is randomly distributed in small bits over lots of people.

It's hard to come up with a better analogy because the cases are so different. But here's a try: Imagine that a "red light" is legally defined in some odd way related to the viewer's perception, so a color-blind person who sees red and green as the same is legally considered to be running a red light even if a non-lawyer would call the light green.

The color-blind person objects to getting a ticket for running a red light on the grounds that although the light is legally red, cars are not crossing, and it's safe to run through this particular light. Shouldn't we accept that, since having a too broad law is affecting this guy constantly?
3.2.2007 6:26pm
Clayton E. Cramer (mail) (www):

I think the Framers had more foresight that you give them credit for in drafting the 14th Amendment, and not even Thomas, the only originalist on the Supreme Court, would agree with you that the 14th Amendment has no application at all except in cases of racial discrimination.
Nor did I say that was the case. But in understanding what they understood "equal protection" to mean or what "privileges and immunities" meant, it would be good to look at the discussions and debates.

There's plenty of discussion of the dangers of freedmen and free blacks being disarmed and terrorized, subject to laws that were unequally applied (the Black Codes) where race was the basis for discrimination. Where are the examples of either side in the 14th Amendment debates arguing about the rights of sexual minorities?
3.2.2007 6:26pm
jrose:
The problem is you can't just enact an exception for cases where the perpetrator didn't know the step-child until the step-child was already 18 without getting a lot of borderline cases over "didn't know."

Why are borderline as-applied challenges a problem?
3.2.2007 6:29pm
BobNSF (mail):

Where are the examples of either side in the 14th Amendment debates arguing about the rights of sexual minorities?


Or, for that matter, the sexual majority: women?
3.2.2007 6:38pm
M. Simon (mail) (www):
Perry Dane:

The problem with the "Ick Factor" approach is that it is not universal. What is icky here might not be icky there. One of the reasons pornography is not prosecuted much any more. Which community standards prevail?

Laws should deal with actual harm. In the interests of justice judges should rule that way as well.
3.2.2007 6:47pm
Letalis (mail):
Yeah, but what if the step-daughter is really hot?
3.2.2007 6:50pm
M. Simon (mail) (www):
The actual harm standard would have more weight in this case had the step daughter or the mother brought the complaint.
3.2.2007 6:52pm
non-native speaker:
Cornellian:


Incest laws protect a child from being coerced into a relationship with the child's parent.


I would say that incest laws protect the child from being persuaded or seduced into such relationship. In my view, if the child is an adult, such persuasion should be free from state action. Coertion should be the subject matter of rape laws, not incest laws.
3.2.2007 6:56pm
M. Simon (mail) (www):
The ick factor is a denial of liberty.

As some one pointed out above inter racial sex was banned in some places because of the ick factor (I'm not discounting other more pernicious reasons).

It is a slippery slope. In Germany years of propaganda and cultural stereo types identified Jews with the ick factor. The rest as they say is history.

To be safe from this type of hysteria laws must conform to actual harm to individuals and judges should so rule.
3.2.2007 7:00pm
Clayton E. Cramer (mail) (www):


The only reason that "discrimination" became a dirty word is because discrimination based on race was determined by a strong majority of those who decided to stay in the Union as wrong.


And, as we all know, discrimination based on religion is just fine...
To my knowledge, the laws against religious discrimination are statutory, not imposed by the courts.
3.2.2007 7:09pm
Clayton E. Cramer (mail) (www):
BobNSF writes:

Where are the examples of either side in the 14th Amendment debates arguing about the rights of sexual minorities?

Or, for that matter, the sexual majority: women?
You will notice that the 14th Amendment's equal protection clause didn't grant women the vote. That was done state by state as a matter of majority vote, and then federally, by amending the Constitution. Nor did the 14th Amendment give women equality in divorce proceedings, or property. That was done again state by state, through the democratic process. When women were protected from discrimination by federal law, it was again done primarily through statutory changes--you know, by persuading the majority that it was a good idea.

That's a hint.
3.2.2007 7:11pm
Cornellian (mail):
I would say that incest laws protect the child from being persuaded or seduced into such relationship. In my view, if the child is an adult, such persuasion should be free from state action. Coertion should be the subject matter of rape laws, not incest laws.

I had in mind the situation in which the step-parent manipulates, abuses the child psychologically for years before the child is 18, such that she (typically it's going to be a male step-parent / female child) is not going to be capable of informed consent just because she's turned 18.
3.2.2007 7:14pm
Clayton E. Cramer (mail) (www):
M. Simon writes:


The ick factor is a denial of liberty.

As some one pointed out above inter racial sex was banned in some places because of the ick factor (I'm not discounting other more pernicious reasons).
Huh? I've never seen evidence of "ick factor." The late 17th and early 18th century statutes seem to have been because white women were in short supply, and black men (both free and slave) were competing too successfully for the affections of white women, who were "forgetting their place" to quote the Maryland statute.

The 20th century statute that is the subject of Loving is a classic Social Darwinist belief in white racial superiority, and concern about the diluting of the white blood. Show me some "ick factor" in any of these statutes.

Significantly, even states that banned white/black marriage often allowed white/Oriental marriages.
3.2.2007 7:15pm
Clayton E. Cramer (mail) (www):

The color-blind person objects to getting a ticket for running a red light on the grounds that although the light is legally red, cars are not crossing, and it's safe to run through this particular light. Shouldn't we accept that, since having a too broad law is affecting this guy constantly?
From a rational basis standpoint, it sounds like a good argument for denying this guy a driver's license. If his argument is that he can't tell if the light is red, so he runs it because it is safe, then he can't tell if it is red the rest of the time. If his argument is that it is safe to run the light, then whether he is color blind or not is irrelevant.
3.2.2007 7:17pm
Cornellian (mail):
There's plenty of discussion of the dangers of freedmen and free blacks being disarmed and terrorized, subject to laws that were unequally applied (the Black Codes) where race was the basis for discrimination. Where are the examples of either side in the 14th Amendment debates arguing about the rights of sexual minorities?

What matters is what they enacted, not what they were talking about when they enacted it. By your logic, (and as Bork once tried to argue), the 14th Amendment protects only blacks from discrimination, not members of any other race, because discrimination against blacks was the problem before Congress when they enacted the 14th Amendment. If Congress is concerned about illegal immigrants from Mexico, and this causes Congress to enact a law making being in the USA illegally a felony, then a Canadian here illegally is guilty of a felony, notwithstanding that Congress was thinking and talking about illegal immigration from Mexico, and notwithstanding that illegal immigration from Canada may not pose any of the same problems, and notwithstanding that the numbers of Canadians immigrating illegally may be so small that no in Congress even knew or cared about it as an issue. What matters is the statute that Congress enacts, not what motivated Congress to enact it.
3.2.2007 7:22pm
non-native speaker:
Cornellian: In my view, if the child is not capable of informed consent at 18 (either because it was manipulated when minor, or for any other reason whatsoever, mental disability, drugs, etc.), then it is rape.
3.2.2007 7:27pm
jrose:
In my view, if the child is not capable of informed consent at 18 (either because it was manipulated when minor, or for any other reason whatsoever, mental disability, drugs, etc.), then it is rape.

Maybe so, but the majority did not rely on lack of informed consent, instead arguing that the family relationship was harmed. If I knew as a child that someday I might have informed-consent sex with my parents (or step-parents who raised me), that would change my relationship with them while growing up. It is rational to argue that change is for the worse.
3.2.2007 7:40pm
Randy R. (mail):
Clayton: But unless you are doing something in a public place, or leave the blinds open and the neighbors complain (which would likely lead to a public indecency charge, in any case, as it should), these laws are not enforced. How would you get evidence? The Lawrence case was quite unusual in how their actions led to an arrest."

Then why defend the law? But the law WAS there, and it was in deed used against gay people. In custody cases, where one spouse turns out to be gay, the courts would sometimes say that the gay spouse is a criminal, and therefore shouldn't be around the children. In Virginia, a lesbian judge was denied a spot on the bench by the legislature for the sole reason that she couldn't uphold the laws when she would clearly be violating them. In cases of gay sex with minors, it was used as an excuse to give gays a higher sentence than straight people.

So the laws were indeed used as an excuse to brand all gay people as criminals, among other effects.
3.2.2007 8:07pm
non-native speaker:
Maybe so, but the majority did not rely on lack of informed consent, instead arguing that the family relationship was harmed.

Sure, I was just referring to Cornellian's, not the majority's, concern.

As regards the family harm, my view is that, if the family members are adults, the state has no business in doublechecking what is in their best interest as regards the consented family relatioships. If having sex with your parents disturbs you, simply do not (consent to) have sex with them. But let others choose by themselves.
3.2.2007 8:10pm
jrose:
if the family members are adults, the state has no business in doublechecking what is in their best interest as regards the consented family relatioships

As I said above and Eugene argues (presuasively in my view), the harm is done to other parent/minor-child relationships.
3.2.2007 8:27pm
Randy R. (mail):
Clayton: My point is that public health might be a valid basis for governmental regulation of private activity, and homosexual actions are certainly higher risk for deadly STDs than heterosexual actions, relative to their fraction of the population. That alone could justify differences in how the laws are written. "

Again, that is quite misleading. The fastest growth in HIV is in the urban African-American population between men and women. According to your logic, then, laws could be written to regulate their behavior, no?

And if there is a vaccine or some sort of cure for AIDS, of course you would agree that there is no need for regulation of gay sex? And if a new disease should arise within primarily the white heterosexual population that is deadly, you would regulate their behavior and not gays?
3.2.2007 8:29pm
subpatre (mail):
Randy R. wrote "In Virginia, a lesbian judge was denied a spot on the bench by the legislature for the sole reason that she couldn't uphold the laws when she would clearly be violating them."

That's untrue. She withdrew her name from consideration, but in reality forfeited the position by openly attacking the legislature in a letter for hard questions during standard (private) interviews.
3.2.2007 9:20pm
Clayton E. Cramer (mail) (www):

Clayton: But unless you are doing something in a public place, or leave the blinds open and the neighbors complain (which would likely lead to a public indecency charge, in any case, as it should), these laws are not enforced. How would you get evidence? The Lawrence case was quite unusual in how their actions led to an arrest."

Then why defend the law?
I'm defending the constitutionality of the law, not its merit.

But the law WAS there, and it was in deed used against gay people. In custody cases, where one spouse turns out to be gay, the courts would sometimes say that the gay spouse is a criminal, and therefore shouldn't be around the children.
Certainly, this happens. But why does this make the law unconstitutional? I can see why you aren't happy about it, but there are many laws that I don't like, and can't get changed. So I moved to somewhere where my values were better aligned with the population.

In Virginia, a lesbian judge was denied a spot on the bench by the legislature for the sole reason that she couldn't uphold the laws when she would clearly be violating them. In cases of gay sex with minors, it was used as an excuse to give gays a higher sentence than straight people.
Do you mean in Kansas? I certainly don't think that was a good idea, and police chiefs opposed the the so-called "Romeo and Juliet" exception because not every case that fit that qualified by any means. And yes, you could have made a strong case for why this law was unfair without the ACLU arguing that minors have a "due process liberty interest" in having sex with adults.

So the laws were indeed used as an excuse to brand all gay people as criminals, among other effects.
By the definition of what a law is, they were. So the right solution is to persuade the population otherwise--not just make up the Constitution as you go along.
3.2.2007 11:12pm
Clayton E. Cramer (mail) (www):

Again, that is quite misleading. The fastest growth in HIV is in the urban African-American population between men and women. According to your logic, then, laws could be written to regulate their behavior, no?
Absolutely! Oh, but the laws in question are ALREADY on the books: laws against prostitution and illegal drug use. And that's where the vast majority of that growth is taking place. And those laws (at least at the state level) seem pretty unquestioned in their constitutionality, don't they, even though they punish people for private sexual behavior.

And if there is a vaccine or some sort of cure for AIDS, of course you would agree that there is no need for regulation of gay sex? And if a new disease should arise within primarily the white heterosexual population that is deadly, you would regulate their behavior and not gays?
Too late! One of the reasons why prostitution became a legal concern of European governments in the 16th and 17th centuries is because the strain of syphilis that came back from the New World with Columbus's sailors was especially virulent compared to the existing European strains. Laws providing for contact tracing exist in this country specifically because of the public health problems that were almost entirely heterosexual in nature.

But when it came to AIDS--oh, we just can't apply laws designed for a deadly STD (syphilis) to another deadly STD (AIDS) because homosexuals objected.
3.2.2007 11:17pm
Ken Arromdee:
From a rational basis standpoint, it sounds like a good argument for denying this guy a driver's license. If his argument is that he can't tell if the light is red, so he runs it because it is safe, then he can't tell if it is red the rest of the time. If his argument is that it is safe to run the light, then whether he is color blind or not is irrelevant.

No, that's not it. The point of the hypothetical is that the reason we think it's okay to prevent people from going through safe red lights is that this doesn't affect any one person too much.

In the hypothetical, assume that this person can tell the difference between a red and green light in some way other than color (perhaps by seeing that it's on the top or bottom). The problem is that the law is poorly written and defines "red light" relative to one's color perception. This quirk of the law has led to all green lights being defined as legally red, only for this person.

He claims that the law is a bad law because the "red lights" that the law prohibits him from running are actually green, and therefore are safe to run through.

On the other hand, someone making a similar argument to one supporting overly broad incest laws says "the law should enforce norms even when the rationale for those norms doesn't apply".

I think it's clear that the color blind guy is correct. The rationale for not running legally-red lights only applies to lights that are layman-red. The law should change so that legally-red is not broader than layman-red--i.e. so that legally-red only covers those cases where the rationale applies. Exceeding the rationale is not a good idea.
3.3.2007 4:07am
markm (mail):

The problem is you can't just enact an exception for cases where the perpetrator didn't know the step-child until the step-child was already 18 without getting a lot of borderline cases over "didn't know."

The relevant exception is not "didn't know", but "did not live as child and parent".
3.3.2007 8:14am
jrose:
And yes, you could have made a strong case for why this law was unfair

What would that argument be, and does it lead to the conclusion that the law is unconstitutional?

without the ACLU arguing that minors have a "due process liberty interest" in having sex with adults.

Do you have a citation to support this claim about the ACLU?
3.3.2007 9:41am
Clayton E. Cramer (mail) (www):

Do you have a citation to support this claim about the ACLU?
The ACLU's brief in the Limon case is quite clear on this. I copied this from their brief when it was up on their web page, footnote 13 on page 17. Not surprisingly, they have since removed it:

While a teenager's constitutional rights may be more limited than an adult's in some circumstances, and while the state is more likely to have a compelling state interest that justifies intruding upon a teenager's rights, it is well established that teenagers - like adults - have a due process liberty interest in being free from state compulsion in making these types of personal decisions.
The brief's argument to which footnote 13 is attached lists a whole stack of rights that the ACLU will not acknowledge have any legitimate state regulation:
Sexual intimacy, including same-sex intimacy, the Court explained, is protected by the same fundamental right to autonomy recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down law against use of contraceptives by married couples); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending Griswold to unmarried persons), Roe v. Wade, 410 U.S. 113 (1973) (striking down abortion restriction), Carey v. Population Services Int�l, 431 U.S. 678 (1977) (striking down restriction on the sale of contraceptives); and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Lawrence, 123 S. Ct. at 2476-82; id., at 2476 (characterizing these cases as "the most pertinent beginning" of its analysis).
What's really interesting is that the ACLU's brief in defense of Limon is arguing that a minor has a "liberty interest" in having sex free of government compulsion. If they were defending a minor against a criminal charge, this would be at least plausibly related to the question--but in this case, they were defending an adult against a criminal charge. So they were arguing that a minor's right to have sex with adults was a legitimate argument in a criminal case where an adult was being prosecuted.

The ACLU was arguing for the right of a minor to have sex--but it was really the right of an adult to have sex with a minor who apparently said, "No."

I'm not the only person who read the ACLU's brief in this way. Kansas Attorney-General Phill Kline also read the ACLU's argument in that same way.

Hmmmm. ACLU argues for a "due process liberty interest" of minors to have sex with adults. ACLU defends NAMBLA in the Curley rape/murder/pedophilia case. Former president of Virginia ACLU chapter gets arrested for buying child rape videos online. I'm beginning to see a pattern here.
3.3.2007 12:30pm
BobNSF (mail):
Why do you say "apparently", Clayton?

Oh, by the way, congratulations on managing to keep this thread NAMBLA-free until well after post 100. Granted, you joined the discussion late, but it's still got to be a record. High five!


I'm beginning to see a pattern here.


Oh, there's a pattern, alright.
3.3.2007 1:21pm
Clayton E. Cramer (mail) (www):

Why do you say "apparently", Clayton?

Oh, by the way, congratulations on managing to keep this thread NAMBLA-free until well after post 100. Granted, you joined the discussion late, but it's still got to be a record. High five!

I'm beginning to see a pattern here.

Oh, there's a pattern, alright.
If you don't like that the ACLU chooses to bring pedophilia into homosexual rights cases, you really need to complain to the ACLU. Or perhaps homosexuals could have told NAMBLA where to go in the 1980s and 1990s, instead of welcoming them into their parades.
3.3.2007 1:31pm
eric (mail):

Again, that is quite misleading. The fastest growth in HIV is in the urban African-American population between men and women. According to your logic, then, laws could be written to regulate their behavior, no?


That is an obvious equal protection violation.

Clayton's argument about homosexuality and AIDS is a good one in my view that properly points out ambiguity in the law. The argument is rational, especially when compared other post hoc justifications for moral legislation that has to be justified on some pretextual reason.
3.3.2007 1:40pm
Clayton E. Cramer (mail) (www):

that is an obvious equal protection violation.
Laws against prostitution and IV drug abuse violate equal protection?
Clayton's argument about homosexuality and AIDS is a good one in my view that properly points out ambiguity in the law. The argument is rational, especially when compared other post hoc justifications for moral legislation that has to be justified on some pretextual reason.
The fact is that all sorts of laws regulating private consensual human behavior are Constitutional: prostitution; bans on discrimination; drug laws; antitrust laws. They may not all be sensible, but stupid laws aren't a violation of the Constitution.

The notion that a law must be "rational" is very appealing, but defining what makes a law rational is highly subjective. The Supreme Court in Romer v. Evans (1996) decided that the voters of Colorado, prohibiting state and local governments from adding sexual orientation to antidiscrimination laws was not rational. Why? Because to the Supreme Court, disapproval of homosexuality is irrational. I guess a majority of nine lawyers is more rational than a majority of several million voters.

The same approach--defining "rational" and "irrational" as makes one happy--could be used to strike down Connecticut's domestic partners statute, by simply decreeing that because homosexuals can't have biological children, such a statute is "irrational." See how easy it is when you have a majority of the tyrants in black?
3.3.2007 1:54pm
jrose:
The ACLU was arguing for the right of a minor to have sex--but it was really the right of an adult to have sex with a minor who apparently said, "No."

What intellectually dishonest garbage as was clearly pointed out to you in a prior discussion.
3.3.2007 2:02pm
jrose:
And yes, you could have made a strong case for why this law was unfair

What would that argument be, and does it lead to the conclusion that the law is unconstitutional?

[Still waiting for a response]
3.3.2007 2:04pm
Dick Schweitzer (mail):
Should we not be clariying the issue here rather than categorizing conduct? While Mr. Dane writes of the "Law," being used to constrain conduct, the "Law" is a function of governments (one of the reasons we have them). Even the Ohio defendant seems to have framed his case on the basis of having a judicially established "right."

The issue here was to determine when the "State" can (or should) criminalize particular conduct? What kind of entity must we conceive the "State" to be for "it" to have a "legitimate interest" (or as more compelling in Federal lingo "a Compelling Interest")?

We apply the title "State" to jurisdictional divisions of this nation, but that does not change what they are. They are governments, and governments are only mechanisms. So, in our concepts of what uses may be made of those mechanisms, is this type of criminalization (coercion and penalization) a necessary, appropriate,or effective let alone "justifiable" use of those mechanisms?

Governments, as mechanisms have no "interests." Interests are the province of the individuals in the social order. The issue becomes: Is this a circumstance in which some individuals (even a vast majority) within a social order, for purposes of their own objectives and to enforce their views on "reprehensible" conduct, can use (or should be allowed to use)governmental powers to constrain the conduct of others?

R. R. Schweitzer
3.3.2007 2:15pm
Clayton E. Cramer (mail) (www):
jrose writes:



The ACLU was arguing for the right of a minor to have sex--but it was really the right of an adult to have sex with a minor who apparently said, "No."

What intellectually dishonest garbage as was clearly pointed out to you in a prior discussion.
All that previous discussion clarified is that if the ACLU was arguing for neutrality based on sexual orientation, they could have done so without turning the right of minors to have sex with adults into a due process claim.

Look, it is pretty clear what the ACLU's position is: that all laws that regulate sexual behavior are suspect. They've taken the position that they will challenge polygamy laws, for example, and their defense of NAMBLA on the Curley case is pretty clear.
3.3.2007 2:49pm
Clayton E. Cramer (mail) (www):


And yes, you could have made a strong case for why this law was unfair
What would that argument be, and does it lead to the conclusion that the law is unconstitutional?
That having sex with children puts them at risk from STDs, regardless of whether that sex is homosexual or heterosexual, nor does it matter if the adult is 18, 25, or 50. (And yes, lesbians are capable of transmitting STDs to another female.) Of course, that would have required the ACLU to argue that children shouldn't be having sex.
3.3.2007 2:53pm
jrose:
All that previous discussion clarified is that if the ACLU was arguing for neutrality based on sexual orientation, they could have done so without turning the right of minors to have sex with adults into a due process claim.

True, but you went a giant-step further and claimed, "[t]he ACLU was arguing for the right of a minor to have sex [with an adult]" which you know not be the case because the ACLU argued that the due-process claim is trumped by a compelling state interest.
3.3.2007 3:57pm
jrose:
That having sex with children puts them at risk from STDs, regardless of whether that sex is homosexual or heterosexual

Are you saying the Kansas law classified children by whom they had sex with (classification #1: with an 18 or 19-year old of the opposite sex, classification #2: with any other adult) - and because those two classifications get different levels of protection from STDs, the classifications violate Equal Protection?
3.3.2007 4:05pm
Kev (mail) (www):
SteveH:
But if the step-daughter was already an adult (and I mean a real adult, not an 18-year-old) when the marriage happened, the ick factor is less compelling

Just curious, Steve: How old does one have to be before you consider them a "real" adult?
3.3.2007 7:10pm
jvarisco (www):
Bob) I don't see how your reasoning follows. Equal treatment for suspect classes has already been granted. The question is not if it exists, but who gets it. The Lawrence reading (which I think was wrong) did not ban all regulation of private behavior. There are quite a few things that are illegal in private. I happen to think allowing people to engage in certain consensual sexual acts in private to be pretty narrow, compared to creating a new suspect class and granting it a broad spectrum of rights. Not to mention official goverment support (rather than merely toleration) of homosexuality. That would have been a broad ruling indeed.
3.3.2007 7:37pm
Clayton E. Cramer (mail) (www):
jrose writes:


True, but you went a giant-step further and claimed, "[t]he ACLU was arguing for the right of a minor to have sex [with an adult]" which you know not be the case because the ACLU argued that the due-process claim is trumped by a compelling state interest.
Except that all the examples that they gave in the paragraph to which that footnote was attached are ones where the ACLU can't ever seem to find a compelling state interest!
3.3.2007 11:14pm
Clayton E. Cramer (mail) (www):


That having sex with children puts them at risk from STDs, regardless of whether that sex is homosexual or heterosexual

Are you saying the Kansas law classified children by whom they had sex with (classification #1: with an 18 or 19-year old of the opposite sex, classification #2: with any other adult) - and because those two classifications get different levels of protection from STDs, the classifications violate Equal Protection?
Yes. The Kansas law criminalized sex with minors, but made the penalty less severe if the age difference was small (four years, I think) AND if they were opposite sex. This had the effect of giving underage females less protection from predatory males than it gave to males. (Yes, there are males who are predated on by older females, but that's far less common.) Imagine if a state passed a law that made murder of females punishable by ten years in prison, but murder of males punished by twenty years. Would that be an equal protection violation?
3.3.2007 11:17pm
jrose:
Except that all the examples that they gave in the paragraph to which that footnote was attached are ones where the ACLU can't ever seem to find a compelling state interest!

That might or might not be true, but it doesn't matter because the footnote explicitly said gender-neutral age-of-consent laws are justified by the compelling state interest of "protecting children from sexual abuse."

Your claim that in Limon the ACLU was arguing for the right of a minor to have sex with an adult is factually in error - and you know it.
3.4.2007 8:57am
jrose:
This had the effect of giving underage females less protection from predatory males than it gave to males.

That is an interesting gender-discrimination argument I hadn't thought of, although it is surprising coming from someone who doesn't believe the 14th ought to cover gender discrimination.
3.4.2007 9:35am
Randy R. (mail):
What is surprising is that I mentioned that AIDS is fastest growing among urban black populations. Clayton retorted that of course it is, and that's why there are laws against prostitution and drug use.

The surprising part is that Clayton assumes that 'urban blacks' are prostitutes and drug users. Although a small percentage are, most are law-abiding citizens. Yet, according to Clayton, not only are they all criminals, their sexual behavior should and is regulated.

Of course, that's not at all true. Not one person is suggesting that sex among urban black populations should be regulated, even if it were to slow down the spread of AIDS. Yet, he argues that the state can regulate it among gays for that very same reason.

Another thing is that Clayton seems to think that Lawrence was just a decision that struck down a law unpopular with gays. He further argues that there are laws he doesn't like but he has to live with, and that we can't just rewrite the constitution to deal with laws we don't like.

I agree. And just because someone out there doesn't like gay sex is no reason to rewrite to constitution to allow for a law to exist which would ban gay sex but not striaght sex. I may not like striaght sex, but I can't get a law that would pass constiutional muster, and I have to live with that.

Fortunately, as we've mentioned many times on this board, Lawrence was NOT about striking down an unpopular law. It was about striking down an law which violated the constitution.

And we all have to live it now.
3.4.2007 12:59pm
BobNSF (mail):
For just a moment, let's take Clayton's false interpretation to be true.

He routinely accuses gay people (usually gay men) and liberals of advocating that children have some sort of right to have sex with adults or vice-versa. What strikes me as odd is that the Kansas legislature -- long dominated by Republicans -- actually does take that view. Faced with the reality of adolescent love and the raging hormones of youth, they legislate light, if any, punishment for sex between late teen minors if the sex is heterosexual and only moderate punishment if one of the participants is barely an adult if the sex is heterosexual. Furthermore, they imbue these relationships with a degree of romance -- which most people actually understand -- by calling their regulation "Romeo and Juliet" laws.

But, should Romeo's eyes turn to Mercutio, rather than to Juliet, off to the dungeon he goes for 17 years. The efforts to free the poor guy took years and was bitterly fought by the state every step of the way.
3.4.2007 1:58pm
Clayton E. Cramer (mail) (www):

That might or might not be true, but it doesn't matter because the footnote explicitly said gender-neutral age-of-consent laws are justified by the compelling state interest of "protecting children from sexual abuse."
So why make this claim after listing a stack of situations where the ACLU doesn't believe that there is compelling state interest?

Your claim that in Limon the ACLU was arguing for the right of a minor to have sex with an adult is factually in error - and you know it.
I don't know that to be the case. I should point out that the Kansas Attorney-General read that claim in exactly the same way. Maybe you don't like seeing the ACLU in this light--but why make the argument?
3.4.2007 9:15pm
Clayton E. Cramer (mail) (www):

What is surprising is that I mentioned that AIDS is fastest growing among urban black populations. Clayton retorted that of course it is, and that's why there are laws against prostitution and drug use.

The surprising part is that Clayton assumes that 'urban blacks' are prostitutes and drug users. Although a small percentage are, most are law-abiding citizens. Yet, according to Clayton, not only are they all criminals, their sexual behavior should and is regulated.
Urban blacks who are the fast growing AIDS population are prostitutes and IV drug users, and those who have sex with them. You might go read some of CDC's reports on method of spread.
3.4.2007 9:17pm
Clayton E. Cramer (mail) (www):
Randy R. writes:

Another thing is that Clayton seems to think that Lawrence was just a decision that struck down a law unpopular with gays. He further argues that there are laws he doesn't like but he has to live with, and that we can't just rewrite the constitution to deal with laws we don't like.
The particular statute struck down in Lawrence applied only to homosexuals. Texas had a broad law against oral and anal sex, and sex with animals, but they revised it back in the 1970s, and left only the ban on homosexual oral or anal sex. That was one of the arguments against it.

You really ought to research this subject a bit more before talking about it.

I agree. And just because someone out there doesn't like gay sex is no reason to rewrite to constitution to allow for a law to exist which would ban gay sex but not striaght sex. I may not like striaght sex, but I can't get a law that would pass constiutional muster, and I have to live with that.
I don't particularly care what you do in private. (That's the difference between us, since you seem to want laws to tell me what to do in private, by your own admission.) I don't think it makes much sense for the government to tell you what you can do, either. But that doesn't make a law unconstitutional.
3.4.2007 9:20pm
Clayton E. Cramer (mail) (www):


This had the effect of giving underage females less protection from predatory males than it gave to males.
That is an interesting gender-discrimination argument I hadn't thought of, although it is surprising coming from someone who doesn't believe the 14th ought to cover gender discrimination.
But you do! This would have given you the same result that you wanted, but without making an argument about the right of minors to have sex with adults. So why didn't your side make that argument instead of one that can be read as a right of minors to have sex with adults?
3.4.2007 9:22pm
Clayton E. Cramer (mail) (www):
BobNSF writes:


For just a moment, let's take Clayton's false interpretation to be true.
As I have pointed out, the Kansas AG read it the same way--and interestingly enough, when the Kansas Supreme Court did finally strike down the discriminatory part of the law, they didn't buy the ACLU's claim.

He routinely accuses gay people (usually gay men) and liberals of advocating that children have some sort of right to have sex with adults or vice-versa.
Do you or do you not acknowledge that NAMBLA used to regularly march in gay pride parades? That gay activists often defended NAMBLA's presence? That many of your leading lights (such as Allen Ginsburg) were openly in support of pedophilia?
What strikes me as odd is that the Kansas legislature -- long dominated by Republicans -- actually does take that view.
There was a considerable argument about this, with police chiefs and district attorneys arguing against the "Romeo and Juliet" exception--at least partly because there's a lot of adult men out there prepared to take advantage of starry-eyed and foolish 14 year old girls.
Faced with the reality of adolescent love and the raging hormones of youth, they legislate light, if any, punishment for sex between late teen minors if the sex is heterosexual and only moderate punishment if one of the participants is barely an adult if the sex is heterosexual.
Nice theory, and I'm sure that there are couples that fit this model. But you know what? Big deal. The 15 year old girl is still pregnant, having to make a difficult choice, and the 15 year old girl or boy may now be infected with syphilis, AIDS, or a number of the less severe STDs.
Furthermore, they imbue these relationships with a degree of romance -- which most people actually understand -- by calling their regulation "Romeo and Juliet" laws.
As I said, a number of those involved in writing the law weren't happy about this exception, and I see no reason to make an exception based on sexual orientation. There's a reason that we don't let 14 year olds carry handguns, drive cars on public highways, or make contracts: they are easily led astray by their emotions and manipulated by idiots and creeps.
But, should Romeo's eyes turn to Mercutio, rather than to Juliet, off to the dungeon he goes for 17 years. The efforts to free the poor guy took years and was bitterly fought by the state every step of the way.
Yup. And when you read the case, there's a good reason for it. Limon's sexual advances were not wanted; the 14 year old said, "No." This also wasn't Limon's first time getting in trouble going after younger boys for sex. You suppose that those two factors might be why they fought this case so vigorously?

No means no--and especially so when the victim is a minor. But I can see why the ACLU and homosexual activists feel a need to defend someone making unwanted advances.
3.4.2007 9:31pm
Clayton E. Cramer (mail) (www):
jrose writes:

That is an interesting gender-discrimination argument I hadn't thought of, although it is surprising coming from someone who doesn't believe the 14th ought to cover gender discrimination.
Tell me: if the equal protection clause of the 14th Amendment prohibited gender discrimination, why did it take another amendment to the Constitution to guarantee the right of women to vote? Why did we spend many years arguing about whether to ratify the Equal Rights Amendment? Are you saying that the equal protection clause guarantees the right of homosexuals to marry--but didn't guarantee the right of women to vote? I look forward to your explanation!
3.4.2007 10:08pm
jrose:
So why didn't your side make that argument instead of one that can be read as a right of minors to have sex with adults?

The argument made by the ACLU cannot be read as a right of minors to have sex with adults by anyone who is intellectually honest.

The ACLU obviously must reject your alternate argument (girls are victims of discrimination) because the suggested remedy (raising the penalty for a 18-year old man who had consensual sex with a 15-year old girl) is not what the ACLU sought.
3.4.2007 10:27pm
jrose:
Maybe you don't like seeing the ACLU in this light

I don't like when people make intellectually-dishonest arguments.

but why make the argument?

The ACLU wanted to strengthen their case by not just relying on a Romer-style, rational-basis animus argument. So, they argued that 1) any law which restricted minors having sex must overcome heightened scrutiny, 2) gender-neutral age-of-consent laws meet that burden, and 3) the Kansas law does not.
3.4.2007 10:37pm
Clayton E. Cramer (mail) (www):


So why didn't your side make that argument instead of one that can be read as a right of minors to have sex with adults?
The argument made by the ACLU cannot be read as a right of minors to have sex with adults by anyone who is intellectually honest.
In spite of calling it a "due process liberty interest" while discussing the right of married couples to contraception, and of women to obtain an abortion. Who's not being intellectually honest here?

The ACLU obviously must reject your alternate argument (girls are victims of discrimination) because the suggested remedy (raising the penalty for a 18-year old man who had consensual sex with a 15-year old girl) is not what the ACLU sought.
In short, the ACLU was more interested in lowering the penalty for molesting a 14 year old boy than in removing an irrational exception--and so interested that they argued that a minor has some sort of right to have sex with an adult. Even worse: what relevance does the right of a minor to do X have when the minor isn't being prosecuted?
3.4.2007 10:39pm
Clayton E. Cramer (mail) (www):

The ACLU wanted to strengthen their case by not just relying on a Romer-style, rational-basis animus argument. So, they argued that 1) any law which restricted minors having sex must overcome heightened scrutiny, 2) gender-neutral age-of-consent laws meet that burden, and 3) the Kansas law does not.
Except the law didn't restrict minors--it restricted adults. Minors weren't subject to punishment under this statute--only the adult was subject to punishment.
3.4.2007 10:41pm
jrose:
Are you saying that the equal protection clause guarantees the right of homosexuals to marry--but didn't guarantee the right of women to vote?

In 1920, caselaw had not established that gender calssifications were unconstiutionally discriminatory. I have no doubt that given the caselaw of the mid 1970's and early 1980's, the Equal Protection clause would be interpreted to guarantee women the right to vote even without the 19th Amendment.
3.4.2007 10:48pm
jrose:
Except the law didn't restrict minors--it restricted adults. Minors weren't subject to punishment under this statute--only the adult was subject to punishment.

Whether the ACLU's argument was persuasive or not is of no relevance to your intellectually dishonest interpretation of it.
3.4.2007 10:55pm
jrose:
In short, the ACLU was more interested in lowering the penalty for molesting a 14 year old boy than in removing an irrational exception

Among the stipulated facts of the case was the sex was consensual. You may honestly disagree with that assessment. You may honestly believe there was molestation even if the sex was consensual. However, it is (once again) intellectually dishonest of you to ascribe to the ACLU either of those beliefs, and hence intellectually dishonest of you to accuse the ACLU of wanting to lower the penalty for molesting a 14-year old boy.
3.4.2007 11:12pm
Clayton E. Cramer (mail) (www):
jrose writes:


In 1920, caselaw had not established that gender calssifications were unconstiutionally discriminatory. I have no doubt that given the caselaw of the mid 1970's and early 1980's, the Equal Protection clause would be interpreted to guarantee women the right to vote even without the 19th Amendment.
As late as Goesart v. Cleary, 335 U.S. 464 (1948), case law had not established this, and even now, they haven't. Laws that discriminate based on sex are subject to heightened scrutiny, not strict scrutiny. Try again when you actually have bothered to research the subject.
3.4.2007 11:55pm
Clayton E. Cramer (mail) (www):
jrose writes:



Except the law didn't restrict minors--it restricted adults. Minors weren't subject to punishment under this statute--only the adult was subject to punishment.



Whether the ACLU's argument was persuasive or not is of no relevance to your intellectually dishonest interpretation of it.
You keep trying to avoid answering the question: why does the right of a minor matter on a case involving prosecution of an adult? And why won't you answer that question?
3.4.2007 11:56pm
Clayton E. Cramer (mail) (www):

Among the stipulated facts of the case was the sex was consensual.
See the decision from the Kansas Court of Appeals:

Limon, an 18-year-old male adult, and M.A.R., a 14-year-old boy, both resided at a school for the developmentally disabled. M.A.R. told police that Limon had performed one instance of oral sex on him. M.A.R. further told the police that Limon performed oral sex on him until he asked Limon to stop. [emphasis added]
Clear enough? But why let some unpleasant facts get in the way of having sex with a retarded child?
3.5.2007 12:00am
jrose:
Laws that discriminate based on sex are subject to heightened scrutiny, not strict scrutiny.

Yes, but don't you think prohibitions against women voting would be struck down under heightened scrutiny?
3.5.2007 8:56am
jrose:
And why won't you answer that question?

Because the answer is not relevant to what we are debating: your intellectually-dishonest interpretation of the ACLU's argument. The answer would be relevant to whether the ACLU's honest argument is persuasive, but we are not debating that topic. Why did you ask irrelevant questions?
3.5.2007 9:06am
jrose:
M.A.R. told police that Limon had performed one instance of oral sex on him. M.A.R. further told the police that Limon performed oral sex on him until he asked Limon to stop

The key word being until. As stated in the decision of the Kansas Supreme Court:
M.A.R. consented to the sexual contact, and when he asked Limon to stop, Limon did so.
The stipulated facts of the case are the sex was entirely consensual. Yet, you claim otherwise to smear the ACLU. That is (and I am being charitable here) intellectually dishonest.
3.5.2007 9:15am
Clayton E. Cramer (mail) (www):

Laws that discriminate based on sex are subject to heightened scrutiny, not strict scrutiny.

Yes, but don't you think prohibitions against women voting would be struck down under heightened scrutiny?
They probably would. Heightened scrutiny is a way for the Court to defeat original intent without admitting it.
3.5.2007 12:09pm
Clayton E. Cramer (mail) (www):
jrose writes:


The stipulated facts of the case are the sex was entirely consensual. Yet, you claim otherwise to smear the ACLU. That is (and I am being charitable here) intellectually dishonest.
What, exactly, do you think it shows that someone says, "Stop that."

You are so intent on protecting this wonderful pet case of yours, where an 18 year old took advantage of a retarded child, that you keep looking for ways to make Limon into a victim, not a victimizer.
3.5.2007 12:11pm
Clayton E. Cramer (mail) (www):

Because the answer is not relevant to what we are debating: your intellectually-dishonest interpretation of the ACLU's argument. The answer would be relevant to whether the ACLU's honest argument is persuasive, but we are not debating that topic. Why did you ask irrelevant questions?
I quote their argument. You just can't bear the thought that your precious ACLU is on the side of child molesters.
3.5.2007 12:12pm
jrose:
What, exactly, do you think it shows that someone says, "Stop that."

Again, you can honestly take issue with the stipulated facts of the case, but you cannot honestly ascribe your beliefs to the ACLU in order to claim the ACLU is on the side of child molestors.
3.5.2007 1:00pm
markm (mail):

why does the right of a minor matter on a case involving prosecution of an adult?

Because when you make it illegal for A to have sex with M, you also restrict the choice of partners available to M. It may also paradoxically increase the danger to M - if M is primarily attracted to A's, then such a law ensures that M will sleep with an A who doesn't worry about breaking laws...

Put another way, why does forbidding McDonald's from selling Big Macs restrict my choice to eat oversized hamburgers?


Faced with the reality of adolescent love and the raging hormones of youth, they legislate light, if any, punishment for sex between late teen minors if the sex is heterosexual and only moderate punishment if one of the participants is barely an adult if the sex is heterosexual.

Nice theory, and I'm sure that there are couples that fit this model. But you know what? Big deal. The 15 year old girl is still pregnant, having to make a difficult choice, and the 15 year old girl or boy may now be infected with syphilis, AIDS, or a number of the less severe STDs.

Do you think hormone-driven teens would be better off in prison? They shouldn't have restricted this to heterosexuals, but otherwise the Kansas legislature commendably bowed to reality and didn't cause greater harm by way of legal penalties than the activities in question usually cause.


an 18 year old took advantage of a retarded child

I'm not sure how young or how retarded this "child" was, but this is nearing a very difficult area of the law. A seriously retarded person may not ever be able to meaningfully consent to sex - but nevertheless, when they reach the right age they've got the same hormonal drives as everyone else. I can certainly see reasons for laws providing extra protection to the retarded against sexual predators, and I can see even better reasons for such laws when a custodial situation is involved, but I don't see any such laws being involved here. Apparently the legislature didn't think about that...
3.5.2007 1:15pm
Aleks:
Re: You will notice that the 14th Amendment's equal protection clause didn't grant women the vote.

But the argument was in fact made at the time that it did grant voting rights to women based upon a simple and direct raeding of its language (which would also certainly include women among those "persons born or naturalized" in the USA.) Susan B Anthony even deliberately got herself arrested attempting to vote in order create a test case which, unfortunately, the courts refused to hear. Indeed, the courts were so afraid of having to rule in Ms Anthony's favor that they allowed her to get away with a very public and flagrant contempt of court when she refused to pay the fine leveied as penalty and repeatedly emphasized this in public.
3.5.2007 5:13pm
Elais:
Clayton

I see you're back on track with your gay sex obsession.

What's you're take on men who love hot young female tail?

The GOP like their wimmin young and virginal. Sanctity of marriage and all that. The GOP supports abstinence until marriage, so they must be in favor of child marriages. And how about priests? GOP always defends child-raping priests.

If you find the above statemens absurd. Then so is your claim that the ACLU is on the side of child molesters. It's the GOP who do that.
3.5.2007 10:16pm