What Will Be Legalized Next?
By Jeff Johnson
Congressional Bureau Chief
June 30, 2003
(CNSNews.com) - If homosexual activists have their way, the
Supreme Court's ruling in the Lawrence v. Texas - that
homosexual sodomy cannot be outlawed - will be used to force states
to grant legal recognition of homosexual "marriages" performed in
other states and even in other countries. While legal scholars on
both sides of the Lawrence debate agree that the decision
does not provide a basis to deconstruct traditional marriage, other
laws regulating sexual activity may be in serious
Justice Anthony Kennedy, writing for the majority,
seemed to rule out the possibility state laws that define marriage
as only being possible between one man and one woman could be
challenged, based on the Lawrence case.
"It does not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter," Kennedy wrote.
Roger Pilon, vice president for legal affairs at the Cato
Institute, agrees with Kennedy that the potential legitimization of
homosexual unions "is a very separate issue.
decision dealt with the state's staying out of a relationship
[saying], 'We're neither going to approve nor disapprove,'" Pilon
said. "They gay marriage issue is one that calls for the state to
give its affirmative imprimatur to a relationship, to affirmatively
Glen Lavy, an attorney with the pro-family
Alliance Defense Fund, is clinging to Kennedy's specific statement
that the Lawrence case does not involve the issue of
"Based on that, we will take the position
that this opinion has no bearing on same-sex 'marriage,'" Lavy
Nonetheless, he still expects homosexual activists to
try to use the decision as a basis for seeking legal recognition for
such relationships. Other pro-family groups, including Dr. James
Dobson's Focus on the Family, expect homosexual activists to take
advantage of the legalization of homosexual "marriages" in
"Some homosexual couples will go to Canada, get
'married,' come back home and want to have their 'marriage' licenses
honored here," warned Focus on the Family's vice president for
public policy, Tom Minnery.
The potential damage to marriage,
Lavy warned, is incalculable.
"We have so undermined the
meaning of marriage already in this country through the easy divorce
laws that you can understand why some of the homosexuals can say,
'Well, you've changed it so much, why would you keep us out?'" he
acknowledged. "But the reality is that we need to strengthen
marriage, not weaken it further."
Matt Daniels, president of
the Alliance for Marriage, appeared with Minnery on Dobson's program
Friday. He urged the passage of the proposed Federal Marriage
Amendment (FMA), which would constitutionally mandate that marriage
can only be between two individuals of the opposite
"This represents the consensus of the American people
that marriage is a man and a woman," Daniels said. "It takes the
courts completely out of the business of social revolution and
remaking the family at the request of activist
Prostitution could be challenged as a result of
In addition to apparently excluding the
legal status of homosexual relationships, Kennedy initially set
aside any discussion of legalizing prostitution.
case does not involve...public conduct or prostitution," Kennedy
Pilon said the court has always viewed sex within a
relationship differently than sex for hire. "There the issue is,
it's for commercial purposes," he explained, "and the court has
always sanctioned regulation of commercial activities more easily
than regulation of personal activities."
But a later
statement in the majority opinion, Pilon believes, may have opened
the door to a future challenge to anti-prostitution
"The petitioners are entitled to respect for their
private lives," Kennedy wrote. "The State cannot demean their
existence or control their destiny by making their private sexual
conduct a crime," he added. "Their right to liberty under the Due
Process Clause gives them the full right to engage in their conduct
without intervention of the government."
Pilon said most
Libertarians believe sex for hire should be legal and hopes the
Lawrence decision is a step in that direction.
should commercial relationships be subject to any greater regulation
than non-commercial relationships?" Pilon asked. "Therefore, this
does leave it open for prostitution as the next candidate, which I
would enjoy seeing."
Lavy finds some comfort in the fact that
the court did not explicitly extend the Lawrence decision to
prostitution, but he is not as happy about the ruling's
"If you've got two consenting adults," he asked
disapprovingly, "where is the constitutional mandate that says it's
not private, consensual activity if money changes
Scalia believes decision 'will have far-reaching
In a dissenting opinion joined by Justice
Clarence Thomas and Chief Justice William Rehnquist, Justice Antonin
Scalia wrote of his belief that the majority's ruling opened the
door to much more than just legalized prostitution.
laws against bigamy, same-sex marriage, adult incest, prostitution,
masturbation, adultery, fornication, bestiality and obscenity are
likewise sustainable only in light of [the court's prior] validation
of laws based on moral choices," Scalia wrote. "Every single one of
these laws is called into question by today's decision."
said Scalia's worst-case scenario predictions are "very clearly the
result of this opinion.
"I think that this case will extend
to prostitution, I think it will also extend to any adultery laws,"
he added disapprovingly. "If private consensual sex is the issue,
then you cannot have any penalty."
Scalia warned of dire
consequences should challengers successfully apply the protection
extended to homosexual sodomy in the Lawrence case to other
so-called "adult, consensual sexual activities."
judicial decisions and legislative enactments have relied on the
ancient proposition that a governing majority's belief that certain
sexual behavior is 'immoral and unacceptable' constitutes a rational
basis for regulation," Scalia wrote. "The impossibility of
distinguishing homosexuality from other traditional 'morals'
offenses is precisely why [the court previously] rejected the
"The law," he concluded, quoting
from a previous Supreme Court decision, "is constantly based on
notions of morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process Clause, the
courts will be very busy indeed."
a news tip to Jeff Johnson.
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