so simply because those sex laws are on the books, that means the people ceded that authority?

If it helps you to think of it that way, yes. Same applies to every other law, of course.

and my argument is that a right to privacy doesn't need to be written in a constitution. it's innate as part of your membership into the club of consenting adults.

It may or may not be "innate" to consenting adults. That's a completely irrelevent question. It's not in the Constitution, therefore it isn't Constitutionally protected. You can't say it's in there just because you want it to be. You can say it should be in there, and you can put it in there, maybe, but it isn't in there.

your argument seems to be that there needs to be a written "right to privacy", otherwise it doesn't exist

No, my argument is that if it isn't written in there, it isn't legally recognized.

without a grant of authority to regulate my private life(for me this is one of those "inalienable things), they don't have the power

So, exactly what laws do you think states have the authority to pass? Seat belt laws gotta go, too, right? What else?

Just as a side note, I find it funny how the same people who see the Constitution as you do can read so much into it except what's actually there. What's your position of federal gun laws? How about the tenth amendment? Isn't the government pretty explicitly barred from being involved in about 80% of the things it is involved in? But somehow, while certain parts of the Constitution seem to say much more than they do, other parts say much less. Interesting.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

Providing Constitutional protection to gay sex already has lead to gay marriage in MA. As I said, the MA Supreme Court cited Lawrence in its opinion.

If you take your view and the view of the reasoning in Lawrence as equal protection, I really don't see how you logically stop gay marriage, polygamy, incest and the like. If you say A, you have to say B.

That is why I, and presumably Santorum think Lawrence is a terrible and dangerous decision. If you want to pass a law to get rid of anti sodomy laws, I really don't care. Just don't do it via fanciful interpretation of the Constitution.

anything follow rational basis will likely be upheld. i am unaware of the court striking something down using a "pure" rational basis test.

I'm not sure about "pure', but Lawrence was a rational basis test, wasn't it?

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And my point is not that the courts don't use that standard, but that that standard is clearly not laid out in the Constitution.

OK, point taken. But neither is your standard, right?To get back to the original point I was trying to make...

I know, it's the age-old debate.

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i'd have to look...

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f/k/a mclamb6

Can you point to a law that forbids sex between two consenting adults who are related? Say, between first cousins. I'll make it easier: show me a law that forbids sex between a mother and a son, when the son is over 21. Note that the original statement to which you replied referred to regulating *sex*, not marriage.

There may be incest laws regulating sex, I'm merely speculating.

As for bestiality, there are laws that protect animals against cruelty; bestiality would, I'm sure, be found by the courts to be cruel.

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"Go yell at an M&M"

this argument is exactly why many opposed a bill of rights. by making specific exceptions in the form of rights, people were afraid of the negative implication that anything not listed was fair game for regulation.

it depends under what authority congress is regulating fire arms. i thinkt he commerce clause has been interpreted pretty expansively to the detriment of the states and to the point of stretching plausibility. it's almost become a federal police power. if, however, it is viewed as a national security issue, i think that is an appropriate area for federal regulation and centralized decision making.

unfortunately for the 10th amendment, it's general nature has left it open for gutting. state authority has definitely been eroded between the relegation of things such as the 10th amendment to afterthought status and the expansion of commerce clause powers. in some ways, that might be a good things because local gov'ts are facing some serious fiscal crises. on the other hand, it could be argued that the expansion of federal power has been a contributing factor as states rely on the feds and willing give up their authority in exchange for funds.

i don't think my views on the constitution with respect to social issues do any damage whatsoever to the document and, in fact, are directly in line with the language, spirit, and intent...

and i wouldn't say the gov't is explicitly barred from about 80% of the pies its fingers are in, but there is most definitely some stretching of authority that strains plausibility to justify federal involvement...

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f/k/a mclamb6

the majority based its view on the due process clause and it's basic rationale was as follows:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. "

o'connor, in her concurrence, purports to apply rational basis, but qualifies it thusly:

We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

she mentions rational basis, but it's clear she's applying something at least along the lines of intermediate scrutiny...

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f/k/a mclamb6

There may be incest laws regulating sex

There are. Take my word for it, or check google.

Course, you'll have to sort through all the articles about the legal challenges to bans on incestual marriages, too.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

How about this one from Florida?

826.04 Incest. ---
Whoever knowingly marries or has sexual intercourse with a person to whom he is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "Sexual intercourse" is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.

Note that the original statement to which you replied referred to regulating *sex*, not marriage.

Like I said, there are plenty of laws criminalizing incestual sex, as opposed to simply barring incestual marriage.

But I'm curious- if you think there's no reason to ban incestual sex, what's your reason for banning incestual marriage?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

You have read into my questions an assumption that is without merit. At no point did I comment on whether I approve of these bans. In fact, I do. I see verifiable societal harm in allowing such practices.

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"Go yell at an M&M"

You have read into my questions an assumption that is without merit.

Humblest apologies.

I see verifiable societal harm in allowing such practices.

Brace yourself, then, cause I got news: The bans on incest are unlikely to hold up in the current legal atmosphere.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

No need to apologize. Why do you think the bans will not hold up?

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"Go yell at an M&M"

Why do you think the bans will not hold up?

http://archives.cnn.com/...ossman.incest.04.09/

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

By the same logic that the bans on sodomy were struck down. Equal protection argument. Take out the term sodomy, insert incest, change nothing else. The logic is indistinguishable. Private sexual conduct, privacy, penumbras, blah, blah, blah.

Of course, my analysis assumes that logic was actually used in the Lawrence case. More likely the desired result was predetermined by the judges' policy preferences, and the logic followed to paper over the decision.

Well, vitus, your article only deals with cousin-cousin mariages (and implicitly, sex). As only 24 state prohibit cousins from marrying, there's hardly a national consensus on the issue currently.

More fundamental in our society would be the taboo of brother-sister, or parent-child, no? Any reason to think that would change?

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As only 24 state prohibit cousins from marrying, there's hardly a national consensus on the issue currently.

Yet another argument for allowing incest- no national consensus against it. Excellent.

More fundamental in our society would be the taboo of brother-sister, or parent-child, no? Any reason to think that would change?

There's no reason to think it wouldn't. (The taboo might remain, but there's hardly a legal case that can be made against it that will hold up in the face of current legal trends.)

What are you going to argue? That it's OK for cousins to get married, but not a brother and sister? On what grounds?

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

That it's OK for cousins to get married, but not a brother and sister? On what grounds?


The fact is that the further the degree of relativity there is, the less taboo (and the less reason by virtue of preventing genetic abnormalities) there is from prohibiting relatives from marrying. Where do you draw the line?

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The fact is that the further the degree of relativity there is, the less taboo (and the less reason by virtue of preventing genetic abnormalities) there is from prohibiting relatives from marrying.

You keep talking about taboos, as if that means anything. It doesn't.

As for the increased chance of genetic abnormalities, how much greater a chance is there for a mother-son, or brother-sister relationship? And how is that any of the state's business? The state already allows marriages in which there's a high likelihood of genetic abnormality. For example, the state doesn't prevent one from being married and having kids if one has a serious inherited disease. The state doesn't prevent a blind couple, or a deaf couple, from marrying. The state doesn't prevent two retarded people from marrying.

Not only that, in some of those cases, the argument against allowing marriage might actually be stronger, since not only do those couples stand a greater chance of passing on a defect, they are also arguably less able to care adequately for children.

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

"so simply because those sex laws are on the books, that means the people ceded that authority?"

If the people elect representatives who then pass laws and the people don't challenge those laws for decades or even centuries, then yes, the people have ceded that authority.

"and my argument is that a right to privacy doesn't need to be written in a constitution. it's innate as part of your membership into the club of consenting adults. your argument seems to be that there needs to be a written "right to privacy", otherwise it doesn't exist and it(my or anyone else's private lives) is open to gov't regulation"

I don't know what Vitus thinks, but to me, it's not that the right may not exist, but it certainly isn't a Constitutionally protected right. If it's not in the Constitution, and you don't pass a law protecting it, then you can't reasonably expect to have that protection. That's what the legislature is for. You can stomp your foot and say "But I should have a right to the privacy of my bedroom" all you want, but that doesn't make it so unless some law says so.

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Slowguy

(insert pithy phrase here...)

New FL state slogan:

"Move to FL and you can have gay sex with your cousin!"

OK so social taboos dont mean anything, and the state has no business worrying about genetic abnormalities. So, what's the justifiticatino for incest laws? Just because it's in Leviticus?

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OK so social taboos dont mean anything That's your basic argument in Lavender Room Debate Number 1, right?

state has no business worrying about genetic abnormalities. Or one could argue that it does, but since it isn't enforcing any rules in any other case in which genetic abnormalities are likely, it's got no business singling out people who want to marry Mom.

what's the justifiticatino for incest laws? You tell me. So far, it looks like Art- and Santorum- is right, huh? Damned slippery slope . . .

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"People think it must be fun to be a super genius, but they don't realize how hard it is to put up with all the idiots in the world."

If the people elect representatives who then pass laws and the people don't challenge those laws for decades or even centuries, then yes, the people have ceded that authority.

No, it means the majority has ceded the authority. Big difference.

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