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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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Tuesday, December 02, 2003 :::
Also in today's Best of the Web, Taranto points out that a polygamist's lawyer is citing Lawrence. The nested blockquotes are the AP (as quoted by Taranto), followed by Taranto.
The nation's high court in June struck down a Texas sodomy law, ruling that what gay men and women do in the privacy of their homes is no business of government. It's no different for polygamists, argued Tom Green's attorney, John Bucher, to the Utah Supreme Court. "It doesn't bother anyone, (and with) no compelling state interest in what you do in your own home with consenting adults, you should be allowed to do so," Bucher said.
One can make a principled distinction between gay rights and polygamy; we did so back in April. The again, these distinctions have a tendency to break down under legal scrutiny. Griswold v. Connecticut, the 1965 case that discovered a constitutional right to contraception, was rooted in the right of marital privacy. By the time the court decided Roe v. Wade in 1973 the right to reproductive privacy had been severed from marriage and applied to abortion. In 1986's Bowers v. Hardwick the court declined to establish a right of sexual privacy to gay couples--but 17 years later in Lawrence v. Texas it reversed itself. The court in Lawrence drew the line at same-sex marriage, but the Massachusetts Supreme Court quickly stepped over that boundary.
It may be worth pointing out that Goodridge (the Massachusetts gay-marriage case) was decided on the Massachusetts Constitution, and not on rights which are now covered by the ninth and fourteenth amendments to the US Constitution, but which weren't covered by said amendments when they were ratified. As such, it's not a descendent of Lawrence.
It's certainly worth pointing out that while Lawrence is being used by a lawyer to claim a constitutional right to polygamy, no court has bought such an argument. A lawyer could claim a first-amendment right for his client to stick his neighbor's head* on a pike, but that wouldn't mean that we need to re-think the first amendment, that would mean that the client needs to re-think his lawyer. He might also re-think putting heads on pikes, at least where they can be seen from the road, but I've long since left the realms of both relevance and good taste.
* The lawyer's neighbor, or the client's neighbor? Does it matter?
::: posted by Steven at 12:09 PM
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