The Lawrence case now before the U.S. Supreme Court focuses on the constitutionality of the Texas Homosexual Conduct Law -- which criminalizes consensual same-sex sodomy, even when conducted in the privacy of one's home. Amicus briefs have now been filed, and the Court will hear oral arguments on the sodomy case (find the joke) on March 26.
A brief
filed by the libertarian Cato Institute argues that the Texas
statute violates the three main provisions of the 14th amendment:
the Privileges or Immunities Clause, the Due Process Clause, and
the Equal Protection Clause:
"By singling out only homosexual sodomy," said Roger Pilon, Cato's vice president for legal affairs, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick, the 1986 decision that upheld, under the Due Process Clause, a Georgia statute that criminalized homosexual conduct. That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans."
As an alternative, Cato's brief also asks the Court to revisit the long-ignored Privileges or Immunities Clause, which was meant by the framers of the 14th Amendment to be the principal safeguard for liberty against state actions. "The time has come," said Pilon, "to revive the first principles of the 14th Amendment.
The Institute for Justice, a highly regarded libertarian public
interest law firm, also filed an amicus
brief, arguing the law exceeds any legitimate government power.
Bob Freedman, an attorney with the Institute, said:
"Every major political theorist agrees that there must be limits on the government's power. Our Founders believed that individuals should be largely free to pursue their own lives without government intervention. This law runs counter to our entire philosophical and constitutional tradition."
These briefs, and those filed separately by the Republican Unity Coalition and by the Liberty Education Forum (not yet available online), make arguments designed to appeal to Justices to the right of center -- the swing votes needed to win the case. Briefs arguing along more traditional liberal lines, premised on the abortion decision in Roe v. Wade that is anathema to these very Justices, were filed by liberal groups.
Judging the Judge.
President Bush has renominated Mississippi Judge Charles Pickering to the 5th Circuit Court of Appeals. The Human Rights Campaign, the big Washington-based lesbigay lobby, has joined with the National Organization for Women and other liberal activist groups in strongly opposing the re-nomination. "Pickering's career has been punctuated by racial divisiveness, and he also has publicly shared anti-gay sentiments," says HRC.
But last March, when Pickering was originally nominated, the Log
Cabin Republicans issued a pro-Pickering
statement noting that:
In 1991, Pickering sharply rebuked an attorney who tried to use a plaintiff's homosexuality in a fraud trial. "Homosexuals are as much entitled to be protected from fraud as any other human beings," Pickering instructed the jury. "The fact that the alleged victims in this case are homosexuals shall not affect your verdict in any way whatsoever."
In 1994, an anti-gay citizens group in the town of Ovett, Mississippi launched a crusade of intimidation and threats to drive out Camp Sister Spirit, a lesbian community being built by a lesbian couple. When the group took Camp Sister Spirit to court, Judge Pickering threw their case out. This case was featured in Judge Pickering's testimony before the Senate Judiciary Committee.
Aruged LCR's then-head Rich Tafel:
"I have spoken with Judge Pickering at length, and have reviewed his record and consulted with several people around the country. Judge Pickering reiterated to me his strong belief that all Americans should be treated equally under the law, including gay and lesbian Americans, and his record as a federal judge clearly demonstrates it."
One suspects that because Judge Picking is not a liberal jurist favoring expansive government, HRC has concluded he's a racist homophobe.
Sullivan on Rustin.
If you didn't see it, last week's Time magazine had a nice piece
by Andrew Sullivan titled
The Invisible Man, on the legacy of the late civil rights
activist Bayard Rustin, the openly gay organizer of the famous 1963
civil rights March on Washington (wherein Dr. Martin Luther King
proclaimed his dream of a society where individuals would "not be
judged by the color of their skin but by the content of their
character"). That's a thought to consider as the constitutionality
of government-decreed race-based preferences comes back before the
Supreme Court.
--Stephen H. Miller