Re: 14 Amendmen Rocks! Sexist/Homophobic Laws Still Dying Dispite New SC Pick

You have a funny idea of justice - I seem to remember something bout marriage that was put on the ballots of some states that was overwhelmingly rejected in the 2004 election, even in liberal Oregon. This indicates that it's a far left idea being pushing by the media, special interest groups and some powerful weird old men. This after they have inundated us with "Will and Grace" programming (in more ways than one).

I am for tolerance - I am not for advocacy or normalization of lifestyle, and I strongly suspect so are the majority of Americans, who will admit when the shrill PC nanny is removed from the room. More importantly, they will vote against it in the privacy of the polling booth, as is proper in a democracy.

YOu are right about the dirty tricks that some on your side are willing to go in order to promote this - I have personally seen the media out-right lie, without any journalistic integrity what so ever - concerning religious groups acceptance of this or that. It is very disturbing and I can only conclude there are higher ups that are OKing this behaviour.

Hyerdahl wrote: 
Mr. Politically Uncorrect wrote:


Same old supreme court - somehow stretching the 4th amendment - intended
to prevent soldiers and police from arbitrarily searching and detaining
citizens, and 14th - intended to patch up civil war difference and shore
up federalism - to justify their weird old men and one ultra-liberal
woman agenda.



You may call it what you like dear, but in the end, justice will
out...either thru the front door or thru the back.



Hyerdahl wrote:

Virginia strikes down state fornication law
Ruling may signal end for other states' antiquated laws
By Joanna Grossman
FindLaw Columnist
Special to CNN.com
Tuesday, January 25, 2005 Posted: 5:17 PM EST (2217 GMT)

(FindLaw) -- In June 2003, in Lawrence v. Texas, the United States
Supreme Court struck down Texas' ban on same-sex sodomy, holding that
such a law is an unconstitutional infringement upon an individual's
right to privacy.

Last week, the Virginia Supreme Court ruled that, given the precedent
of Lawrence, the state's criminal ban on fornication could not survive.
Thus, in Martin v. Ziherl, the Virginia court invalidated the law,
which, although it dated back nearly 200 years, had not been enforced
criminally against a consenting adult since the middle of the 19th
century.

As this long history and lack of enforcement indicates, fornication
laws are a relic of a past in which most non-marital sexual conduct was
considered criminal behavior. Yet laws still persist on the books in
about 20 percent of the states.

Virginia was right to invalidate such an antiquated law, and other
fornication laws, if challenged in court, are very likely to be
invalidated, as well.

The case testing Virginia's fornication ban
In 2003, Muguet Martin filed a complaint against her ex-lover,
Kristopher Ziherl, for allegedly transmitting genital herpes to her
through sexual intercourse. She alleged that he knew he was infected
with the incurable disease when the couple engaged in unprotected
sexual conduct, and failed to inform her of his condition. She filed a
tort suit, seeking damages for negligence, battery, and intentional
infliction of emotional distress.

Ziherl filed a "demurrer" -- a legal pleading that says even if the
facts alleged are true, there is no legal theory to permit recovery. He
cited a 1990 case, Zysk v. Zysk, in which the Virginia Supreme Court
had refused to allow recovery for injuries suffered while participating
in an "illegal" activity. And he also cited Virginia's law banning
fornication -- defined as sexual intercourse by an unmarried person
with any other person. (Fornication under Virginia law is a misdemeanor
and a violator could incur a fine of up to $250.)

Since fornication is a crime in Virginia, Ziherl argued -- a crime that
both he and Martin were committing -- she should not be able to recover
in tort for any injuries flowing there from. Since she was
participating in an illegal activity, he contended, she should not be
able to recover damages for her injuries -- any more than, say, a bank
robber could recover if his colleague broke his nose in the course of
their joint bank robbery.

The trial judge agreed with Ziherl and granted the demurrer. But on
appeal, the Virginia Supreme Court reversed, and let Martin's case go
forward.

A right of adults
Before considering how the two relevant legal sources -- the Zysk case
and the Virginia criminal statute -- interacted, the Virginia Court
first asked a more basic question: Is the Virginia criminal statute
constitutional? In the end, the court answered no - based on the
Supreme Court precedent of Lawrence v. Texas.

Specifically, Lawrence concerned the validity of a law criminalizing
same-sex sodomy. But in striking the law down, the U.S. Supreme Court
spoke eloquently -- and more generally -- about the nature of the
interest infringed by that statute.

Indeed, the Supreme Court framed the case, quite broadly, as asking
"whether the petitioners were free as adults to engage in the private
conduct [at issue] in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution."

In a famous 1986 opinion, Bowers v. Hardwick, the Court had upheld
Georgia's criminal sodomy law. In Lawrence, the Court reversed course
-- stating that Bowers was wrong when decided, and still wrong
seventeen years later.

Bowers -- the Court made clear -- had incorrectly permitted states the
right to interfere with intimate relationships, something that
substantive due process principles do not allow.

(The doctrine of "substantive due process," when applied to the states,
derives from the Due Process Clauses contained in the 14th Amendment.
Under the Due Process clauses, certain state actions that deprive
persons of life, liberty or property must be accompanied by certain
processes; for instance, some deprivations of property cannot occur
without prior notice and a hearing. But for certain state actions, the
Court has ruled, no amount of process is enough. Here, the Court has
said, the way to honor due process is, substantively, to forbid the
deprivation.)

The Lawrence court concluded, instead, that the constitution protects
the right of adult individuals to conduct consensual personal
relationships "in the confines of their homes and their own private
lives." This right includes the "overt expression" of the relationship
in "intimate conduct."

The majority in Lawrence paid homage to the dissent in Bowers by
adopting Justice Stevens' analysis as the controlling law. In his
Bowers dissent, Justice Stevens had emphasized two points.

First, Stevens argued, morality - even a longstanding view that a
practice is immoral -- is not a sufficient justification to uphold a
law prohibiting particular conduct.

Second, he argued, individual decisions by married and unmarried
persons about "intimacies of their physical relationship, even when not
intended to produce offspring" are a form of "liberty" under the Due
Process Clause.

Applying Lawrence to the Virginia statute
The court in Ziherl held that the principles stated in Lawrence were
applicable to the Virginia fornication statute -- and necessitated that
the statute be struck down as unconstitutional.

To begin, the court noted that the protected "intimacies" first
referred to by Justice Stevens -- and later embraced by the majority in
Lawrence -- must include "the specific act of intercourse ... between
two unmarried persons." In other words, the very act defined as a crime
by the Virginia statute was protected as part of the right to liberty
in Lawrence.

The Virginia court considered the "public reasons" Ziherl offered to
justify the fornication ban -- to protect the public health and to
encourage that children be born into marital families. (Ironically, the
interest in protecting the public health is served both by upholding
the ban on fornication -- and thus deterring nonmarital sexual activity
-- and striking it down -- and thus deterring the negligent
transmission of venereal disease by imposing legal liability for such
conduct.) But, under Lawrence, such reasons are clearly insufficient to
justify a governmental intrusion on personal liberty of this kind.

Although fundamental rights usually trigger the highest level of
judicial scrutiny, the Supreme Court in Lawrence concluded that a ban
on same-sex sodomy could not survive even the lowest form of
constitutional review. The Court held that the "Texas statute furthers
no legitimate state interest which can justify its intrusion into the
personal and private life of the individual." Virginia had no greater
interest in banning fornication than Texas did in banning sodomy.

The court thus struck down the Virginia law, and sent the case back for
trial of the original tort claim. Since the law had been struck down,
the conduct by Ziherl and Martin was no longer illegal. Thus, Martin's
suit against Ziherl was no longer barred by the participation of the
plaintiff in "illegal" activity.

Rather than engaging, together, in a crime, the two had engaged,
together, in an exercise of one component of individual liberty -- the
liberty of consenting adults to engage in private sexual conduct.

Thus, while Muguet Martin, unfortunately, is left with a case of
genital herpes, she is also left with a lawsuit - one that raises the
possibility that she can recover damages from the man who she alleges
infected her. Since the mid-1980s, courts have been willing to apply
conventional tort principles to permit recovery based on knowing
exposure of a sexual partner to the herpes virus.

The likely fate of other fornication laws
Will other states' fornication laws meet the same fate as Virginia's?
To see why the answer is yes, a bit of background is useful.

A decade ago, more than one-third of the states still had criminal bans
on fornication. The laws were seldom enforced, but remained on the
books nonetheless.

Fornication laws did have their day, though. According to historian
Cornelia Dayton (as cited in an article by law professor Anne
Coughlin), fornication comprised the single largest part of the
criminal docket in New England from 1690 to 1760.

And, much more recently, many states actively enforced criminal bans on
fornication during the anti-vice era of the 1920s and 1930s. So-called
"crimes against morality" including fornication, adultery, bastardy,
and abandonment occupied a notable portion of most local criminal
dockets.

Interestingly, six months before Lawrence was decided, the Georgia
Supreme Court struck down that state's fornication law. It did so on
similar grounds to those that would subsequently be elucidated by the
U.S. Supreme Court.

Though not usually thought of as a legally progressive state, Georgia
was slightly ahead of the curve, at least among the states with
fornication laws, on this issue. Later, in the wake of Lawrence,
legislatures in other jurisdictions such as Arizona and the District of
Columbia repealed their unused fornication laws.

In Utah, a challenge to the state's fornication and sodomy laws was
filed the day after the opinion in Lawrence was handed down. But the
court dismissed it for lack of standing - that is, lack of a plaintiff
who had suffered actual injury -- since the individual raising the
challenge had neither been prosecuted nor threatened with prosecution
under either law. The Attorney General filed a statement, though,
indicating that the law would not be enforced against consenting
adults.

With Virginia's law now invalidated, only 12 or so states today
continue to criminalize fornication. Their laws, however, are equally
doomed, under Lawrence -- for just the reasons the Virginia court gave.

And rightly so: Such laws simply cannot be defended under the modern
interpretation of the Due Process Clause. As the Virginia court said in
Ziherl, there is no "relevant distinction" between a law banning sodomy
-- such as the one that Lawrence struck down -- and a law banning
fornication. Both "improperly abridge a personal relationship that is
within the liberty interest of persons to choose."

(As a side note, Virginia still has an anti-sodomy law. But the law is
certainly invalid. Not only the U.S. Supreme Court's opinion in
Lawrence, but also the opinion of the state's own high court in Ziherl,
ensure that.)

Lawrence's only certain implication
What about other laws regulating private, consensual, sexual conduct?
Justice Scalia's dissent in Lawrence predicted the demise of all such
laws--including "state laws against bigamy, same-sex marriage, adult
incest, prostitution, masturbation, adultery, fornication, bestiality,
and obscenity". He certainly overstated Lawrence's intended scope, and
he probably overstated its eventual reach as well.

In truth, laws against sodomy and fornication are the only sex laws
that do not implicate any of the boundaries the Supreme Court tried to
limn in Lawrence. The Court strongly suggested that laws affecting the
institution of marriage, involving minors, or involving sexual
activities that are conducted in public or for commercial purposes
would not be within the bounds of the "private relationships" protected
by the 14th Amendment -- and thus will not be struck down under a
Lawrence-like analysis.

Putting sodomy and fornication laws aside, adultery laws are the most
vulnerable to challenge. In the 20-some states that still criminalize
adultery, the law goes largely if not totally unenforced - but
occasionally, a possible test case does arise.

Virginia, like many other states, also outlaws adultery, and, just a
year ago, a man was criminally charged with adultery (a case I've
written about in an earlier column). In that case, the defendant pled
guilty (although the charges were withdrawn pending appeal) rather than
challenging the law. But any future prosecution would certainly meet
with a constitutional challenge.

Although adultery does affect the institution of marriage, it is not
clear that a criminal ban on the practice does much to protect
marriages generally or in particular cases. Many spouses cheat, few
probably realize that it is criminal behavior, and almost none are
charged under applicable laws. And to the extent an adulterous affair
is conducted in private, it may well fall within the bounds of the
private, intimate relationships with which the government is not
supposed to interfere.

Bigamy, in contrast, more directly jeopardize the traditional
institution of marriage, and more than morality is in play. Record
keeping by states, the safety and well-being of children, and the
stability of the family unit are all potentially implicated by bigamous
relationships.

Those factors don't make bigamy laws immune from challenge, but they
provide some defense to a Lawrence analysis. Bigamy also finds no
widespread tradition of tolerance, either in our country's recent or
more distant past.

Prostitution laws are probably safe. The potential for public health
hazards and the exploitation of women provide such laws with plausible
justifications. Moreover, the decision to sell sex to a stranger (or
buy it, for that matter) is unlikely to be considered by the courts to
be one of the deeply intimate choices adults make in private
relationships.

That leaves us with same-sex marriage -- and Lawrence is only one of
the relevant factors in predicting the survival or demise of such bans.
Only time will tell their fate.


Joanna Grossman, a FindLaw columnist, is an associate professor of law
at Hofstra University, currently visiting at the University of North
Carolina School of Law.



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