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Friday, July 04, 2003

Thursday, July 03, 2003

Liberty et al v. Police Powers: Limiting the State's coercive intrusion into private matters [plus How not to edit for context & more "uncharitable intemperance"...]

Tony Adragna
Why can't people, not even some legal professionals, read Justice Kennedy's Lawrence opinion for what it is — not an assertion of some right to sodomy, but something much more profound.

What that something is can be found in Reynolds' & Kopel's "THE EVOLVING POLICE POWER: SOME OBSERVATIONS FOR A NEW CENTURY" — read it, then let's see if you agree with what I'm about to say of Justice Kenndy's review of history in Lawrence.

Much criticism of Lawrence is centered on a mistaken reading of what Kennedy is about in his review of the history. He's not looking to see if sodomy per se was ever protected as something an individual has a "right" to engage in — the answer to that question is obvious. Rather, Kennedy is looking at the history of the State's use of its police powers to intrude where the conduct being policed is truly "private" — that is, the conduct involves no infringement of another person's rights, nor is there any commerce that the State may claim to be regulating, nor is there any public act where the State might claim a legitimate interest in maintaining public standards.

What Kennedy finds is that even where the conduct is specifically "homosexual", there is no argument in the historical record for such an application of the State's power to police conduct. Moral disapprobation abounds in the history, but that alone neither was then, nor is it now sufficient to justify the application. Evidence the historical record of the State being either unwilling or unable to police such conduct where there is no real harm & Texas' "pattern of nonenforcement with respect to consenting adults acting in private", and it's an unconvincing argument that such an application has its roots in American tradition & history.

In fact, the older tradition in American law, as Reynolds & Kopel argued, is one where the State's police powers are limited by application of the "no harm" rule
The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, state regulation was limited by the common law principle of sic utere tuo ut alienum non laedas (you should use what is yours so as not to harm what is others'), implying that legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the (previous) turn of the century, the story continues, the principle changed from the old sic utere to the new principle of salus populi est suprema lex (the good of the public is the supreme law), suggesting that states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality.
Like all such conventional wisdom, this approach is somewhat simplistic. [FN1] But it captures a large grain of truth. The range of activity that courts, and legal scholars, view as within the scope of legitimate regulation is considerably larger than it was previously...
Now it seems that "courts appear to be rediscovering" limits on government power, and
This rediscovery has important consequences for the affirmative statements of rights contained in both federal and state constitutions as well. In the absence of general limitations on government power, courts confronted with unjust laws have been forced either to contort *536 affirmative rights protections to allow such laws to be struck down, or to allow manifestly unjust laws to stand because they could not find a way to bring them within the ambit of affirmative rights. The result has been a jurisprudence of rights that is both overexpansive and confused, because it attempts to compensate for a jurisprudence of government power that is itself overexpansive and confused.

Focusing on the legitimacy of government power--whether a particular power claimed by the government can properly be considered part of Iredell's "great power of attorney," or Story's "general delegation"--avoids many of these problems. As the cases discussed in this essay illustrate, it will seldom be difficult for courts to identify laws that are passed for improper reasons. Measuring the fit between a statute and "legitimate governmental purposes" is likely to be both less difficult and less controversial than determinations of whether or not to "discover" a new positive right. Indeed, it is noticeable that the many gay-rights decisions mentioned above did not create any significant backlash in their states, even though those states are often generally regarded as conservative. Perhaps this is because language about limited governmental power suits Americans, and American political culture, more often than does language about new positive rights.
One "gay rights" case that the authors don't discuss is Romer, but they do cite it in footnote 78 to support their argument that the Supreme Court has been
[M]aking it clear that legislative powers are finite. Instead of saying that a particular act of a state government "exceeds the police power," the Court finds that the particular act fails the Fourteenth Amendment's "rational basis" test. Rejecting the view that any possible justification for a law is sufficient for a "rational basis" to exist, the Court has used "rational basis" with bite to strike down zoning law, state residency law, and anti-gay rights law. [FN78] That the Court says "Fourteenth Amendment limits" instead of "police power limits" does not really change the underlying process of judicial review, for "[t]he textual *534 pegs in the Fourteenth Amendment . . . did not create the prohibition on class legislation; rather, they merely reflected the scope of the police power[.]" [FN79]
And that's exactly what Justice Kennedy did in Lawrence, only this time he turned to the 14th Amendment's Due Process Clause. He doesn't rely on some controversial finding of a new "fundamental right", nor on the also controversial penumbral "right to privacy". Instead, he invokes Liberty itself as "protect[ing] the person from unwarranted government intrusions into a dwelling or other private places"[emphasis added] and asks whether the intrusion is warranted by some legitimate government purpose. Rediscovering sic utere — or, if you please, relying on the "no harm" rule in a way that unsurprisingly fits the notion that western conservatives are libertarians [though evidence is contradictory] — Kennedy puts in his "rational basis" choppers and declares: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

So, where does Justice Kennedy mention "police powers"? All over the place — the Due Process clause is about nothing but Liberty et al v. Police Powers.

n.b. It doesn't surprise me, though, that Lawrence is controversial notwithstanding that neither does it "contort affirmative rights protections" nor "'discover' a new positive right." It nevertheless puts the Court against a democratically elected legislature puporting to act in the peoples' majoritarian interest.

How not to edit for context: Fritz Schranck recommends an article by Jeffrey Rosen wherein can be found the following passage
[I]n Lawrence, Kennedy, joined by four of his colleagues, made clear that a majority of the Rehnquist Court does in fact mean to read the "sweet mystery" passage for all that it's worth. He said that states and courts should not attempt to "define the meaning of the [intimate sexual] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."
Rosen offers "intimate sexual" as the type of "relationship" that Kennedy was opining on. But that is precisely not what Kennedy is doing. Here's what Kennedy wrote
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
The "conduct" can be described as "intimate sexual", but that "one element" doesn't necessarily define the relationship — it can, if all you're into the relationship for is sex, but that's also true for heterosexuals, just as the heterosexual relationship's "[enduring] personal bond" can be found in homosexual relationships.

It's this constant want to define everything about homosexuals only in the context of our "intimate conduct" that Kennedy calls demeaning, and how does Rosen respond? He accuses Kennedy of claiming for the Court a "new right to 'define the meaning' of intimate relations." Huh?

More "uncharitable intermperance": That's how I described, while warning of more to come, Scalia's dissent in Lawrence. We don't need to wait on Brother Scalia, though — Harold Meyerson delivers above and beyond the call with an op-ed piece titled "Grand Old Gay Bashers" in yesterday's WaPo. As if the title wasn't enough, Meyerson writes
Scalia's dissent from last week's epochal Supreme Court decision striking down Texas's anti-sodomy statute confirms Ayatollah Antonin's standing as the intellectual leader of the forces arrayed against equality and modernity in the United States.
And just to be sure that we don't mistake the "Ayatollah Antonin" usage as a bit of facetious rhetoric, Meyerson makes his point clear
In a period when the United States finds itself threatened by an international network of religious intolerants fuming at modernity and equality, you'd think some GOP notables might step up to condemn the like-minded intolerants in their own ranks -- indeed, atop them.
"Like minded"? Last I looked I couldn't find anybody in the GOP leadership proposing the death penalty, or even incarceration, simply for being gay...

Wednesday, July 02, 2003

Exactly What the Catholic Church Needs...

Tony Adragna
... a sincerely humble pastor
Speaking to reporters after he was named yesterday as the Roman Catholic archbishop of Boston, Sean Patrick O'Malley said he did not yet know where he would live. But he suggested it probably would not be the baronial mansion inhabited by his predecessor, Cardinal Bernard M. Law.

"Obviously, as a Franciscan brother, I prefer to have the simplest quarters," he said.
That might not be "obvious" to non-Catholics, unless they've some knowledge of what a "Franciscan brother" is.[There are actually several types of Franciscans]

And get a load of this
"I have always told diocesan lawyers in the past that settlements are not hush money or extortion or anything other than the rightful indemnification of persons who have suffered gravely at the hands of a priest," he said. "Even when I have been told that there is no legal obligation, I have always said if there is a moral obligation, then we must step up to the plate."
Whoa! Contrast that to all of the weaselly legal maneuvering that Cardinal Law et al engaged, and are still engaging — putting personal security [trying to stay out of jail] & financial health of their Dioceses [not wanting to close that "baronial mansion"] first before the spiritual health of parishoners.

'Course, some folk are wanting to label Bishop Sean a "puppet" of the Pope. Well, I've never met Bishop Sean, but I've known lots of Franciscans of every type, and I've never met a one who was anybody's puppet. Poor, chaste & obedient, but totally lacking what makes one susceptible to putting his superiors' interests above the spiritual health of his parishoners — aspiration to advancement.

If I had to run a recruiting campaing for the Catholic Episcopate, Bishop Sean would be my poster boy: The Catholic Church — Looking for a few humble men!