Posted by Joe Thur:
"Anyone wish to address the comments from this Supreme Court case?
A clip below from the following webpage:
http://www.leatherquest.com/law/geo2.htm * * * * * * *
CHIEF JUSTICE BURGER, concurring.
I join the Court's opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.
As the Court notes, ante, at 192, the proscriptions against sodomy have very "ancient roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality [478 U.S. 186, 197] and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
This is essentially not a question of personal "preferences" but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here."
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Dear Joe,
Simply to put the quote you've provided into perspective, I just wanted to point out that four other Supreme Court Justices did indeed comment on the judgement handed down by the court. They dissented from the majority position.
At the same site to which you were kind enough to provide a link, there is posted the dissent filed by Justices Blackmun, Brennan, Marshall and Stevens. Their tone and view is significantly different from that of Chief Justice Burger. It makes interesting reading. I will not include long quotes, but a couple might be of interest and lead those interested to follow your link.
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From the Dissent:
"This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante, at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)."
...
"The Court's failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question
whether petitioner, on behalf of the State, has justified Georgia's infringement on these interests. I believe that neither of the
two general justifications for 16-6-2 that petitioner has advanced warrants dismissing respondent's challenge for failure to
state a claim.
First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for "the general
public health and welfare," such as spreading communicable diseases or fostering other criminal activity. Brief for Petitioner
37. Inasmuch as this case was dismissed by the District Court on the pleading, it is not surprising that the record before us is
barren of any evidence to support petitioner's claim.3 In light of the state of the record, I see [478 U.S. 186, 209] no justification
for the Court's attempt to equate the private, consensual sexual activity at issue here with the "possession in the home of
drugs, firearms, or stolen goods," ante, at 195, to which Stanley refused to extend its protection. 394 U.S., at 568, n. 11. None
of the behavior so mentioned in Stanley can properly be viewed as "[v]ictimless," ante, at 195: drugs and weapons are
inherently dangerous, see, e. g., McLaughlin v. United States, 476 U.S. 16 (1986), and for property to be "stolen," someone
must have been wrongfully deprived of it. Nothing in the record before the Court provides any justification for finding the
activity forbidden by 16-6-2 to be physically dangerous, either to the persons engaged in it or to others.4 [478 U.S. 186, 210]
The core of petitioner's defense of 16-6-2, however, is that respondent and others who engage in the conduct prohibited by
16-6-2 interfere with Georgia's exercise of the "`right of the Nation and of the States to maintain a decent society,'" Paris
Adult Theater I v. Slaton, 413 U.S., at 59-60, quoting Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Warren, C. J.,
dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in 16-6-2 "for hundreds
of years, if not thousands, have been uniformly condemned as immoral" is a sufficient reason to permit a State to ban them
today. Brief for Petitioner 19; see ante, at 190, 192-194, 196.
I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them
can withdraw legislation from this Court's security. See, e. g., Roe v. Wade, 410 U.S. 113 (1973); Loving v. Virginia, 388
U.S. 1 (1967); Brown v. Board of Education, 347 U.S. 483 (1954).5 As Justice Jackson wrote so eloquently [478 U.S. 186,
211] for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 641-642 (1943), "we apply the limitations
of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the
social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." See also Karst,
89 Yale L. J., at 627. It is precisely because the issue raised by this case touches the heart of what makes individuals what
they are that we should be especially sensitive to the rights of those whose choices upset the majority.
The assertion that "traditional Judeo-Christian values proscribe" the conduct involved, Brief for Petitioner 20, cannot provide
an adequate justification for 16-6-2. That certain, but by no means all, religious groups condemn the behavior at issue gives
the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on
whether the State can advance some justification for its law beyond its conformity to religious doctrine. See, e. g., McGowan
v. Maryland, 366 U.S. 420, 429-453 (1961); Stone v. Graham, 449 U.S. 39 (1980). Thus, far from buttressing his case,
petitioner's invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy's heretical status during the Middle Ages
undermines his suggestion that 16-6-2 represents a legitimate use of secular coercive power.6 A State can no more punish
private behavior because [478 U.S. 186, 212] of religious intolerance than it can punish such behavior because of racial animus.
"The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984). No matter
how uncomfortable a certain group may make the majority of this Court, we have held that "[m]ere public intolerance or
animosity cannot constitutionally justify the deprivation of a person's physical liberty." O'Connor v. Donaldson, 422 U.S. 563,
575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); United States Dept. of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973)."
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It appears that the decision was not unanimous but was issued by a seriously divided court.
Again, thanks for the link.
Steve
