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Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.
"A strong conviction that something must be done is the parent of many bad measures."
-- Daniel Webster
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Thursday, July 03, 2003 :::
I'd like to apologize for not having edited down this entry.
I don't talk about Bush here much, and when I do it's mostly positive. When I'm critical of Bush, it's usually from his right, but check out the following:
Human Rights Campaign, a gay-rights group, dug up an article from the Austin American-Statesman of Jan. 22, 1994, titled ''Bush promises to veto attempts to remove sodomy law.'' The newspaper reported:
''Gubernatorial candidate George W. Bush on Friday promised he would veto any attempt by the Texas Legislature to remove from the state penal code a controversial statute outlawing homosexual sodomy. Bush, a Republican, was asked about the sodomy statute shortly after speaking to the Veterans of Foreign Wars and Ladies Auxiliary.
''I think it's a symbolic gesture of traditional values,'' he said.
I'm consistent in being more libertarian than he is.
A compromise I could live with -- though I don't know whether it would satisfy Bush, and I'm absolutely certain that it wouldn't satisfy the left -- would be to have laws on the books with no penalties. One would be subject to receiving a citation, which one could frame on one's wall, perhaps, or put out by the curb on the next Thursday in a big plastic bag. This could apply to any victimless behavior for which we wish to express official disapproval.
I'd vote against a zero-penalty anti-sodomy law (N.B.: I said I could live with it, i.e., would tolerate it, not that I'd support it). But I'd probably support zero-penalty anti-drug laws and anti-prostitution laws. We could create a whole chapter of the Massachusetts General Laws, replacing chapter 272 with a new one titled, "laws without teeth" (actually, now that I look at 272, there are some things in there that should be kept; those can be moved to a different chapter, though).
Incidentally, here's MGL ch 272 sections 34 and 35:
Chapter 272: Section 34. Crime against nature.
Section 34. Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.
Chapter 272: Section 35. Unnatural and lascivious acts.
Section 35. Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.
Are these defined better by the common law or something? They aren't defined at the beginning of the chapter (a lot of the election-law-related terms are defined in the first chapter of the election laws, so I checked). I can't even tell them apart, except for the "beast" part and the word "lascivious". I assume that at least one of them incorporates sodomy (though I understand the state's Supreme Court invalidated it based on the state constitution about twenty years back).
I've heard that "ignorance of the law is no defense", but it seems the law should at least be required to say what it means. "I'm sorry, your honor -- I assumed that a `crime against nature' referred to the second law of thermodynamics, and while it's true that I refer to myself as a `perpetual lovin' machine', any reasonable person would have recognized that as unserious."
Since I don't think I really responded to the decision when it came out, I'll do so now. As I told my brother, I felt as though the Packers had won on a bad call. I have fully admitted that there are some common-law elements which are beyond my pay grade, and some of Randy Barnett's discussion of the ninth and fourteenth amendments over on Volokh were starting to sway me a little, but I understand that Kennedy's opinion cites the European Court of Human Rights. Call me simplistic, but I consider that prima facie evidence of judicial non-seriousness.
Part of me wonders whether this decision applies to prostitution, and, if not, why not. And I wonder whether sodomy was always protected, or whether that's a function of the changing environment, and, in the latter case, why the legislature isn't the best determinant of the environment.
Lastly, I'd like to kudo Thomas for quoting the dissent in Griswold v. Connecticut (the decision which struck down laws against birth control), calling the law "uncommonly silly". A judge should usually refrain from indicating their own policy preferences, but in this case it seems appropriate to explicitly point out that policy preferences were not the basis of his ruling.
::: posted by Steven at 1:50 PM
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