Define “persecution.” Do all efforts to encourage heterosexuality constitute “ratcheting up the persecution?” If so, why?

What XRLQ said. I doubt he and I agree further—I’m opposed to anti-sodomy laws because it violates my “police kicking in the door” rule—but we probably agree on gay marriage (leave it to the states). That doesn’t strike me as persecution.

I’m not a fan of anti-sodomy laws, either; I just don’t buy the “constitutional” arguments against them. At the time the Constitution was enacted, sodomy was a crime in every state, so if the framers intended to ban such laws it’s a safe bet they would have said so more clearly.

The framers’ wisdom was precisely that they left so many things for posterity to decide. They did not presume to legislate comprehensively or for all eternity; they merely provided a framework for us to work within.

By today’s standards, sodomy laws are quite arguably a violation of the rights that we find inherent in any concept of liberty—see the “police kicking in the door” rule, which is a very good way to put it. Certainly, the founders would not have seen it that way—but just as they were not bound irrevocably to blind tradition, neither are we. In many ways we understand liberty better than they did, and we should not be ashamed to say so.

Xrlq,

I’m with Jason on this one. I subscribe to the Clint Bolick school of thought on most issues and see a broad reading of the first amendment—including freedom of association, as long as it seeks to restrain government—as the way to go.

I also agree with Jason that we need not be bound by the Founders’ views at that time, and that they instead provided us with a framework for liberty designed to restrain government, including against unchecked majorities.

>At the time the Constitution was enacted, sodomy was a crime in every state, so if the framers intended to ban such laws it’s a safe bet they would have said so more clearly.

I agree with the subsequent posters, but I’m not entirely sure how relevant this comment is. The Lawrence case was decided under the “liberty” granted in the 5th amendment as applied to the states through the due process clause of the 14th amendment. The 5th amendment, when it was enacted, applied only to the federal government. The 14th amendment was ratified some 70 years after ratification of the 5th amendment.

And that’s regardless of whether “framers intent” should have much if anything to do with constitutional interpretation. Who were the framers? The people who wrote the constitution? How is their intent to be discerned? The federalist papers provide some indication prior to amendments, but provide little indication of intent regarding the amendments comprising the BoR. The intent of the state legislators who ratified the constitution and/or the amendments? The voters who voted for those legislators? Why should the “intent” of the latter two groups not be taken into account? Although it would be quite difficult to discern their intent. It strikes me that relying on “framers intent” is more than a bit vacuous.

It’s a pity Bork has gone off the deep end. I find him very personable, and if perhaps he was more interested in literature than in restricting civil liberties, he’d be accounted less insane. One of my fondest memories of my short tenure with The Federalist Society is hearing Bork recite Seamus Heaney’s then-new translation of Beowulf.

>By today’s standards, sodomy laws are quite arguably a violation of the rights that we find inherent in any concept of liberty—see the “police kicking in the door” rule, which is a very good way to put it.

I was re-reading Mapp vs. Ohio the other day and was reminded that the opinion in that case referred to the “right of privacy.” That was the basis for the “police kicking down” the door issue. And, “right to privacy” was basically the same term used in Griswold vs. Connecticut. But I suggest that the term meant something different in Mapp and its predecessors than it did in Griswold and its successors.

In Mapp and its predecessor cases, “right to privacy” referred to the right to be free from unreasonable searches and seizures. The immediate issue in Mapp was whether the exclusionary rule—a rule that had applied to prosecutions the federal government for decades previously—should also apply to the states. Reading the litany abuses of state governments related in Mapp suggests that, although the Supreme Court had, for decades, given them the opportunity to try to clean up their acts in regards unreasonable searches and seizures, many of them had done nothing. So, in response, the Supreme Court basically threw up its collective hands—appropriately, in my view—and imposed the exclusionary rule on the states.

The exclusionary rule is a rule of evidence. The exclusionary rule says that illegally obtained evidence—illegally obtained because the circumstances under which the evidence was obtained violated the 4th amendment, as applied to the states—as well as any evidence obtained using the illegally obtained evidence, cannot be used in a prosecution. But the prosecution could continue, if there was other evidence that had not illegally obtained and that was not the fruit of illegally obtained evidence, that might be sufficient to convict under the relevant criminal statute.

As I mentioned, the exclusionary rule is a rule of evidence. It is not a rule that precludes application of an entire category of substantive law based on a presumed “right to privacy”. Fast forward to Griswold. In Griswold, the issue wasn’t the use of illegally obtained evidence in a criminal prosecution. In Griswold, the issue was whether, under any set of facts—and whether or not evidence therefor would be constitutionally obtained—the law under which the defendant was convicted would be considered constitutional. That is, even if the prosecution was based on evidence that was legally obtained under the 4th amendment. That is a far different issue than the one addressed in Mapp v. Ohio, the predecessor of Griswold that made use of the “right to privacy” rhetoric.

Griswold didnt’t give rise to a major uproar among the general population, in large part because Connecticut wasn’t stupid enough to have enforced its antiquated law—that was in issue in the case—against use of contraceptive materials. Similarly with respect to other states. That was not necessarily the case in regards the Roe case. And it certainly was not the case in connection with cases subsequent to Roe, which basically held that, for example, medicaid funding could not be denied in regards abortion funding. That is the point at which anti-abortion forces were galvanized against abortion, in no small measure because those people believed that their tax money was funding abortion services. One might quibble with that, but that’s the fact. That was basically the end of an expansive “right to privacy.”

It is true that the Lawrence case rested on an expansive “right to liberty.” We’ll see how far that goes. Equal rights for gay people do not necessarily rest on anyone funding—against his will—rights of gay people. So there is an inherent difference with the abortion issue. On the other hand, things like state recognition of “gay marriage” (state recognition of rights of same sex couples on the same basis that it recognizes rights of opposite sex couples) do bring in state recognition that same-sex couples exist. And that is more than a bit anathema to more than a few people. The issue does not seem to be much of an issue here in MA at the moment, but we’ll see.

Raj, for purposes of this discussion the “framers” are those who drafted and/or voted on the relevant provisions of the Constitution, which in this case is the 14th Amendment. All states prohibited sodomy at that time, and the odds are essentially nil that it even occurred to a single proponent of that measure (or opponent, for that matter) that the amendment could be used against sodomy laws. This is a clear case of judges taking a law designed to do X, and making it do Y, solely because those judges happen to think Y is a good idea. Maybe you’re OK with the idea of judges acting as a Supreme Soviet. I’m not.

BTW, you’ve confused two separate legal doctrines. One is the doctrine of incorporation, which makes much, but not all, of the Bill of Rights applicable to the states. The other is substantive due process, which finds a protected “liberty interest” in the Fourteenth Amendment itself. A third, less known and much more bizarre doctrine of “reverse incorporation” makes the 14th Amendment applicable to the federal government by way of the 5th.

BTW, “police kicking down the door” is a red herring. That theory goes to reasonable/unreasonable search and seizure. It’s one thing to say that the Fourth Amendment prohibits the cops from kick down my door to see if I am committing X; it’s quite another to argue that I have a constitutional right to commit X.

I’ll have some comments for Xrlq’s responses to me in the morning, but I have a question about this post

Xrlq wrote @ Tue, 19 Oct 2004, 5:15 pm CDT:

>Define “persecution.” Do all efforts to encourage heterosexuality constitute “ratcheting up the persecution?”

(I use > to indicate quoting, by the way)

What would be the proposed purpose(s) of “encouraging heterosexuality”? And who would be doing the “encouraging”?

Moreover, what would “heterosexuality” entail?

I don’t know or care what the purpose is. What I do care about is the fact that both Tim and Chris are defining persecution down. Torturing or murdering someone because he won’t convert to your religion is persecution. So is slashing his tires, writing “death to all heathens” on his walls, etc. Simply encouraging him to convert is not.

raj: For reference, you can quote material either using HTML ‹BLOCKQUOTE› tags or the Textile markup bq. at the beginning of a paragraph. It’ll look prettier, if nothing else.

Xrlq: Being told, repeatedly, that one’s lifestyle is (or, perhaps worse, one’s innate characteristics are) amoral, an affront to nature, and the like, seems a bit more extreme to me (at least) than being gently “encouraged” to convert. Moreover, using the power of the state to do so seems to move well beyond encouragement into coercion.

Xrlq wrote @ Thu, 21 Oct 2004, 1:25 am CDT

I notice that you ignored the second part of the question that I put to you

>Moreover, what would “heterosexuality” entail?

I asked the question for a reason. Would it “heterosexuality” entail? For example, would it entail limiting marriage to opposite sex couples, even if they had no intention of having children. Or, ould it allow, because one or both of the members of the couple was homo-oriented, even having sex with one another? It strikes me that the question is far broader than you wish to admit.

Regarding your rather silly

>Simply encouraging him to convert is not.

Quite frankly, if you want to discuss issues regarding conversion, why don’t you do it on a website that has more than a few posters interested in the issue? I’m referring to http://www.exgaywatch.com/xgw/ I quite frankly don’t give a tinker’s damn whether anyone wants to flit from homo- through bi- to hetersexual activity. Or from hetero- through bi- through homosexual activity. I’ve known more than a few who went through both directions—although it would be obvious to anyone paying attention that most would go in the the (apparent) hetero towards the (obvious) homo direction. Given the anti-homo antipathy of the society. Of course.

I don’t have the slightest idea what your history is, nor do I really give a tinker’s damn about it. Nor do I know whether you are merely a poster who is nothing more than a troll sponsored by the right-wingers (as I suspect), or one of the “ex-gay” nuts who bitch and moan about anything gay. Of course, given the anonymity of the Web, nobody can be sure about anything, can one? (You might mention that to your bud BfT.)

But I have had personal experience with people who have tried to deny their same-sex sexual attraction and who have ruined not only their own lives, but also the lives of the opposite sex partners who they tried to link up (i.e. “marry”) them. The upshot of that experience was not particularly pleasant for most of the people who were involved. It messed up, not only my life (at the time, that is—I subsequently found a truly sweet same sex partner with whom I’ve been together with for more time than you’ve probably been alive), it also messed up the life of my former boyfriend (well, he’s dead, so who cares? You certainly don’t /sarcasm) and the life of the woman he ended up marrying. Fortunately for children who might have been expected from there relationship, there were no children.

I hate to tell you, but the fact is that your “encouraging heterosexuality” falls on deaf ears.

Oh, and Xlrq, thank you for the semantic nonsense that lawyers love to make use of, but I will ask you the same substantive question that I have asked a number of times before, on more than a few web sites and fora, but for which I have never gotten a response that made any sense.

What is a rational basis for the state to refuse to recognize relationships of same sex couples (so-called “gay marriage”) on the same basis that it recognizes relationships of opposite sex couples (so-called “marriage”).

I’ll let you know, as far as I’m concerned, neither procreation nor child-rearing are “rational bases.” The fact is that any homosexual can procreate if he or she wished to. For example, a gay male such as I could father a child with a willing female in the near term by whacking off into a cup. The time that penile/vaginal sex would be required is long past. And more than a few same-sex couples are rearing children. And, as should be clear, more than a few single heteros are rearing children on their own.

So, what is your proposed “rational basis”?

Look around you, people. The entire world already encourages heterosexuality.

Having the government do it too is like holding a rain dance in the Amazon forests. The government ought to be neutral toward homo- and hetero- alike, and leave well enough alone.