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Judicial Molestation of Legislative Rights   
by Selwyn Duke
25 July 2003 Texas

We should fight to keep the big government beast in his cage, but we should remember that he is trinitarian.  A response to Supreme Court Right in Lawrence v. Texas.

If you think that the sense of adventure in American public officials was expended by Theodore Roosevelt while on safari in deepest, darkest Africa, let not your heart be troubled. I assure you, it is alive and well and present in copious amounts in a curious beast known as the modern American jurist. For sure, we now have judges on the bench who will boldly go where no judge has gone before. What I am talking about is the much decried practice of the de facto creation of laws through judicial fiat, known as judicial adventurism.

And a major judicial adventure occurred just recently: the U.S. Supreme Court’s striking down of Texas’ anti-sodomy law. This ruling met with the approval of liberals, libertarians and some conservatives who believe that the law constituted a violation of privacy. It raised the ire of many traditional and religious conservatives who claim that it has set a precedent that will make untenable the criminalization of other aberrant sexual behaviors, such as bestiality.

Now, it is a truth of governance that the creation of frivolous or unenforceable laws undermines the credibility of all laws. For this reason, and because conservative support of the Texas sodomy law could give ammunition to liberals who want to micromanage our lives through the legislation of their values, I have no problem with the elimination of said law. However, the end doesn’t justify the means, and after reading some of the commentary on this issue it has become obvious that a few conservatives and most libertarians are focusing solely on the former and ignoring the latter.

This happens because many people fall victim to “good ideaism.”  This is the tendency to say that something is a bad or a good idea and for that reason alone it should or shouldn’t be struck down by the courts. Doug Hagin exhibits this in his July 18, 2003 treatment of the Texas case. Like many, he laments over conservatives’ support of  “the government of Texas snooping into the sexual acts of consenting adults in the privacy of their own homes.” Now,  I’d like to state that I’m inclined to agree with much of what he said, for such matters probably don’t lie within the purview of government. But that’s not at issue here – what is at issue is what lies within the purview of the courts.

The problem with the privacy argument is that the law itself doesn’t constitute a violation of privacy – what would be necessary to effectively ENFORCE the law would [i.e. – placing cameras inside people’s homes]. This may seem like a distinction without a difference, but it is not. After all, people usually commit the illegal act of suicide within the privacy of homes, and as with sodomy, the only way to consistently prevent it would be via the unconstitutional monitoring of private conduct. But while many would argue that suicide should be decriminalized on the basis of the principle of freedom of determination, I don’t think that those folks would claim that proscribing it constitutes a violation of the privacy rights our Constitution grants us. The case of the Texas anti-sodomy law is similar: the law itself does not violate the privacy provision of the Constitution. As such, it doesn’t fall within the scope of the courts – it falls within that of the Texas legislature.

Mr. Hagin also states that the conservatives’ contention that bestiality could be defended with the same privacy argument is invalid. His reasoning is that since the ruling only legalizes a type of consensual sexual behavior, bestiality could still be criminalized on the basis that an animal cannot give consent. Now, while “Mr. Ed” might disagree with that point, I will only say that such consent isn’t necessary because we do not ascribe to animals the same rights as we do to human beings. I can own a goat; I can lock him in a pen all night or I can put him on the chopping block so that he ends up in a curry sauce on the dining room table. Or I can have a horse provide me with transportation without even paying him the minimum wage. I can’t do any of these things to a person. So, in response to this argument I will quote Jim Rockford: “That’s a little thin, Dennis.”

Next, while Mr. Hagin defends a locality’s right to enforce “Community Standards,” he adds the caveat “but no community has the right to invade a private home and push their ideals upon that home’s residents.” This is incorrect, however, because illegal acts of most any kind can be committed within the home. For this reason, virtually all laws serve to impose values on people in private settings, as well as elsewhere. So, the question cannot be “Should we proscribe certain behaviors that usually occur in private?” but rather, “Should we proscribe THIS particular usually private behavior?” It’s also important to note that just like most laws, the Texas law does not specifically state that you cannot commit the act it proscribes in your home. It simply states that you cannot commit it.
Lastly, there are other points in Mr. Hagin’s piece that indicate that he has descended into good ideaism and isn’t being mindful of the different roles of the three branches of our government. He says that we would be outraged if a community tried to outlaw gun ownership.  But there is no constitutional equivalency between such a measure and the Texas law. This is because our Second Amendment clearly prohibits a community from taking such an action, making it the domain of the courts. There is no corresponding constitutional right to engage in sodomy, however, and this makes that the domain of the legislative branch of government. He also mentions that we would take umbrage if our community outlawed the possession of alcohol in our homes. Most of us would, but the fact remains that the enactment of the 21st Amendment [repealing Prohibition] in 1933 took this issue out of the courts and made it the domain of the legislatures – like sodomy should be. So we could be as upset about it as we wanted, but our wrath should have to be channeled through the voting booth, not through the courts.

I do agree with Mr. Hagin on a number of points though. We definitely must be governed by our heads and not our emotions – emotion is like darkness: the more there is the less you can see. He is also correct in saying that when our passion does trump our reason we become just like our liberal opponents, who are guided by emotion and vacillate with its vagaries. But this is where we must be careful. Because emotion isn’t just a blinding force among those whose visceral disgust for sodomy causes them to support its criminalization without regard for concerns about excessive legislative intrusion into the private sector, but also among people whose formulaic devotion to a libertarian creed causes them to applaud the ruling without regard for concerns about excessive judicial intrusion into the legislative one. It is certainly right to sound the alarm about the dangers of a government “grown out of control,” but it becomes folly when in the process you unwittingly support a judiciary grown out of control. We should fight to keep the big government beast in his cage, but we should remember that he is trinitarian. One characteristic that stunts his growth is that he has three personalities that are in constant conflict: the legislative, executive and judicial. When we allow one of them to overstep its bounds and feast on the others, it is a formula for the creation of a monster who will know no bounds.

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