[url=www.tompaine.com/feature2.cfm/ID/8241]Triumph For All[/url]
Andrew Korfhage lives in Washington, DC.


The anonymous tipster who set in motion Lawrence v. Texas, the case that overturned the nation's sodomy laws on June 26, knew -- at least on some level -- that the public's interest is not served by reporting gay sex acts to the police. Why else would he place a bogus call about a man with a gun, luring officers to the scene of a "crime" (a Houston couple engaged in gay sex) that they might never have investigated?

[b]Had the gun report been true, and had it somehow sparked a gun-control case -- rather than a privacy rights case -- conservatives would have rallied against state infringement on the personal rights enshrined in the Constitution.[/b] As it happened, however, Lawrence v. Texas became a case that split conservatives between those who hold consistent opinions on state intrusion into private life, and those who let the so-called "culture war" trump all.

In a shockingly nonlegal analysis, Justice Antonin Scalia dissented from his fellow justices and accused them of having "taken sides in the culture war." In fact, the majority in Lawrence actually took great care to frame the issue in broad terms, preserving the right to privacy of every citizen, regardless of sexual orientation. This decision gives no "special rights" to gays, as culture warriors like to charge, but instead affirms the right of all Americans to be secure in their bedrooms without state intrusion.

"Our obligation is to define the liberty of all, not to mandate our own moral code," wrote Justice Anthony Kennedy, writing for the majority. He noted that the court in Bowers v. Hardwick, a 1986 sodomy case overturned by Lawrence, failed to "appreciate the extent of the liberty at stake."

This should make conservatives happy. And some are. For example, the Republican Unity Coalition, a conservative group that describes itself as believing in "limited government, free markets, a strong national defense and personal responsibility" filed a brief with the Court, calling for the Texas sodomy law to be overturned. Similarly, the Log Cabin Republicans stated that the Texas law "jeopardize[s] long-standing constitutional traditions that have placed the highest value upon both the protection of the American family and the sanctity of the home against governmental intrusion."

Alan Simpson, former Republican senator from Wyoming, wrote in The Wall Street Journal, "I am a lifelong Republican because I have always believed in the rights of the individual.... The Texas statute... intrudes on the personal freedom of Americans who are harming no one."

Even in his dissent, Justice Clarence Thomas wrote that "punishing someone for expressing his sexual preference through non-commerical consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."

All of these are conservative arguments, yet they compete with another brand of conservatism that holds the ideal of a heterosexual family with children as the sacred building block of our society. This culture-war conservatism would protect so-called "traditional" values at all cost, from behavior (contraception, abortion, gay sex) not intended to build a heterosexual family.

And yet, the culture warriors are losing.

Incrementally, the court has affirmed the right to privacy that allows citizens to make choices, without state interference, on everything from contraception (Griswold v. Connecicut in 1965) to non-procreative sexual behavior (the Lawrence case today). Notably, the justices who decided Bowers v. Hardwick upheld Georgia's sodomy law by incorrectly framing the case around a right to "engage in homosexual sodomy," rather than more broadly, as a right to privacy case.

Those culture-war conservatives who decry the Lawrence decision are those who defy, when it suits their purposes, the traditionally conservative value of limiting the scope of government. This was a decision that conservatives and liberals alike should applaud.

"And yet, the culture warriors are losing"

It's just as much a question of whether the culture that remains is declining.  There are "culture warriors" on all sides of the issues.

A big semantic mish-mash, hardly a triumph.

Where in the Constitution does it say the right to buggery shall not be infringed?

I see the argument about states rights, but I also see (unlike Thomas) privacy written into the 4th:



There is an implication of protection from government intrusion here, and not just from arbitrary searches.  Not seeing privacy as a part of the 4th, also means that you might have to concede that you potentially have no RKBA unless you are part of a militia.

It's kind of hard to see, it's under some the "penumbras" of free speech or property rights or is it "emanations"   Trust them, it's there.

You have a backwards understanding of the Constitution.

The 'Right to Privacy' is derived from several sources

It is derived from the 3rd Amendment.
   
It is derived from the 4th Amendment.

It is derived from the 9th Amendment.

It is derived from the 14th Amendment.

It sure doesn't say you have the right to own guns.

[;)]

Don't forget SCOTUS gave us the right to KILL babies. Pretty cool, huh? Legalized murder.

Your decision only right? Right!

CRC

If the State can decide whether two consenting homosexual adults are legally "allowed" to have sex, then they also have power to decide whether two unmarried, heterosexual adults can have sex too, or how often consenting adults can have sex, or what positions they can legally be in, or how long foreplay should last, or who's legally allowed to make the first move, or what rooms you can do it in, or whether threesomes are legal, or whether you can do it with your socks on or not, or.... you get the idea.

And what does this have to do with RKBA anyway????