~~* Paul's Justice Blog - launched July 4 *~~

Teaching & Understanding Sept 11: 

Photograph of the Moment - Independence Day

Web Intro ~ Contents ~ Photo Archive

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The 4th of July is not a time for blind nationalism, but to remember our founders who broke free of a rule they considered unjust because of their belief in the unalienable rights of life, LIBERTY and the pursuit of happiness. In trying to bring democracy to Iraq, let's not Saddamize our own Bill of Rights or tolerate the Bush Fidayeen who issue death threats to the Dixie Chicks (women who had the nerve to express embarrassment about the President being from Texas...) 

What Values Are We Fighting For? Fighting Terrorism and Preserving Democracy

The late Justice Brandeis commented in a case that “those who won our independence by revolution were not cowards” and “they did not exalt order at the cost of liberty.” His opinion outlines a theory of government and highlights the values that define what the country stands for at its best: 

"Those who won our independence believed that the final end of the state was to make men free to develop their faculties. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. 

"They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. 

"They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” 

The Pew Global Attitudes Project finds "Despite soaring anti-Americanism and substantial support for Osama bin Laden, there is considerable appetite in the Muslim world for democratic freedoms." 

Sorry Mr President, they don't hate us because we're free.

The Board of Directors of the Bulletin of the Atomic Scientists “fully support” a statement signed by 110 Nobel laureates: “The only hope for the future lies in cooperative international action, legitimized by democracy. . . . To survive in the world we have transformed, we must learn to think in a new way.”

Civil Liberties Watch Blog

How Far Is Too Far?

PROMOTING DEMOCRACY IN THE MIDDLE EAST: The Problem of U.S. Credibility [Carnegie Endowment for International Peace]

Core Documents of U.S. Democracy

In reflecting on the meaning of liberty and democracy, consider the recent decision by the Supreme Court to strike down the same-sex sodomy law in Texas. While there has been much commentary, please take a minute to read the summary prepared by the Court itself (I have edited it slightly, put some key points in bold and provided some explanatory notes). Those interested in reading the opinion themselves can click on the case name below and explore the connections between same sex sodomy laws and the right to privacy, which is founded on cases involving access to contraception and deeply implicated in abortion cases. 


FACTS: Responding to a reported weapons disturbance in a private residence, Houston police entered Lawrence's apartment and saw him and another adult man engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional. The court considered Bowers v. Hardwick controlling on that point. (In Bowers, the Supreme Court upheld a sodomy law used against consensual homosexual conduct and played down the importance of the privacy right.)

Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. 

(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy" --discloses the Court's failure to appreciate the extent of the liberty at stake. 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 said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.  They 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. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. 

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.  Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing "ancient roots," ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century. Even now, only nine States have singled out same-sex relations for criminal prosecution. Thus, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger there indicated.  They are not without doubt and, at the very least, are overstated. The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey (abortion case). The Nation's laws and traditions in the past half century are most relevant here.  They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. 

(c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. (see Casey -- which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education--and Romer v. Evans--which struck down class-based legislation directed at homosexuals--cast Bowers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions.  And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis (the system of precedent - "let that decided stay decided") is not an inexorable command. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Bowers causes uncertainty, for the precedents before and after it contradict its central holding.

(d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process.  That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life.

41 S. W. 3d 349, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion. 

Recommended by Webmaster: THE SUPREME COURT TAKES A SAME-SEX SODOMY CASE: Why Sexual Orientation Discrimination is Also Sex Discrimination (Findlaw.com column, which contains a helpful short summary of Bowers)


Any views or opinions expressed in the pictures is not necessarily those of the authors. The photographs are presented as additional commentary on Sept 11th and people's reaction to it. No claim of copyright is being made to the photographs, which are temporarily provided here for their contribution to education. Copyright owners who would like additional credit or the removal of material from this site should contact me



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