Homosexuality and Military Service (Merged thread)

[J Wolfsberger]

SCOTUS (Lawrence v. Texas) threw out civilian sodomy laws by creating a new, previously unknown constitutional right to sexual behavior, as long as it was consensual and between adults.

If I recall correctly, this was decided on the basis of privacy rights. IMHO, that was a mistake. I think the decision was correct, but the basis should have been that the state never has any right to interfere in any voluntary interaction between two consenting adults.

[jmm99]

You know what you really mean - and I probably know what you really mean; but this doesn't express it:

... the state never has any right to interfere in any voluntary interaction between two consenting adults ....

You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?

The difficulty in this and other legal areas is to phrase the rule - and allow for its exceptions.

The line of cases from Griswold v Connecticut (the 1965 birth control case), including Lawrence v Texas and Roe v Wade, led us into the alchemy of "umbras", "penumbras" and even "emanations" - a topic worthy of High Gnosticism.

In actual constitutional language, the three general provisions that come closest to securing the citizen from non-specific governmental intrusions are these:

ARTICLE IV, SECTION 2.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

AMENDMENT XIV, SECTION 1.
... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ....

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

With the notable exception of Justice Thomas re: gun rights, these provisions have not been popular items on the dinner plates at SCOTUS - whatever the ideological slant of the justices.

Regards

Mike

[82redleg]

You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?

I'm not a lawyer, so this is not a professional legal opinion, but I don't think they do until you take some action beyond just deciding, right?

I don't think they should, because if they do, it seems to come perilously close to a thought crime.

[jmm99]

have reached a decision to rob a bank, they probably will have reached the point of either or both of (1) a conspiracy to rob a bank or (2) an attempt to rob a bank.

If they haven't reached that point, then they have nothing to worry about - do they.

Regards

Mike

[motorfirebox]

Er, robbing a bank is not an act between two consenting adults. The bank--the corporation that comprises it, the people in it--doesn't consent, and it's certainly a party to the transaction.

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

[Kiwigrunt]

.

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

An employer and an employee contracting out of a legally set minimum wage. Provided there is such a thing in the USA.

[tequila]

Off the top of my head, I can't think of an act between two consenting adults--that is, an act to which only those who consent are party--that I think the government should make its business.

Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?

[Fuchs]

@DVC:
I read the bible, the whole book, when I was young(er). I treated it like a novel, and it didn't become boring until the Apostle letters.
I don't recall any part where Jesus says that the old laws are obsolete or even offers new laws. Instead, it's an interpretation that the now nicer good doesn't want us to follow the old harsh rules any more.

--------------------------------------------------------------------------

I explain the U.S. right's preference for following the thoughts of some 18th century guys instead of interpreting the constitution as a perfectly practical strategy (probably unconscious, though).

They're conservatives, and as such they naturally prefer no change over most reform proposals (by definition). An interpretation of the constitution that supports this is naturally welcome.
The phenomenon gained much force since the 2008 elections afaik, and the reason is even more obvious:
A very restricting interpretation of the constitution gives a legal argument (false or real) against the political opponent's intents. This legal argument can even gain support if the very same right is unable to achieve its goals through the normal political process (they were a minority in both houses & had lost the WH).

It's utterly predictable that the very same people won't discuss nearly as much about how the constitution is very strict and restrictive (for example the interpretation of the "welfare" part) once they themselves are in power again.

Watch the news about two certain new congressmen and the extremely rapid legislation to fix their gaffe (four minutes of discussion, no time to read the document beforehand afaik). It's obvious how much the constitution of the U.S. has become a political partisan instrument and how much the same people who yield it aren't really serious about it when it's about themselves.



The followers who buy into such partisan strategies because some opinion multipliers told them their stories are merely political tools.


Again: A strict interpretation of the U.S. constitution based on what the writers meant would restrict the right to bear arms to blackpowder weapons and non-firearms. Is that really a reasonable interpretation?

Many simply unacceptable things would happen if Scalia's legal theory of the constitution was really followed. It's basically unworkable.

Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?

Dueling. Conspiration for a crime. Forming an organized crime or terrorist organization. Development of a private nuclear weapon, chemical weapon, biological weapon.

[JMA]

Originally Posted by Brihard
You've said what you have to say, I've said what I have to say. Since you've chosen to interpret my words in such a way as to permit you to come after me personally based on what you perceive as my 'poor leadership' I see no percentage in continuing this. We shall have to agree to disagree.

Have a good day.

OK, we dealt with this via PM.

Back to the essence (IMHO) of the matter.

Here is a quote from WW2 German leadership doctrine:

From the youngest soldier on up, every individual must commit his entire emotional, physical, and mental strength to the mission at hand. Only this endeavor can insure the utmost efficiency of the unit in coordinated action and can create men who will, in the hour of danger, lead the weak to bold action...

... Every man is responsible, not merely for himself, but also for his comrades. The more capable and enduring must lead and direct the weak and inexperienced. Such is the basis from which a feeling of genuine comradeship may develop. This is as important between the leader and his men as it is among the men themselves.

My position is simple. Anything that can upset the delicate balance in a combat unit or create a distraction must be avoided at all costs.

... or as Gen Amos said... a “distraction” that could result in increased injuries and deaths.
__________________
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It was the best of times, it was the worst of times...
-

[motorfirebox]

Prostitution? Sale of illegal narcotics? Sale of fraudulent products or services, or where one party misrepresents themselves to the other, or breaches contract?

I've already stated my opinion on sex and drugs. It's not reasonable to consider a fraudulent transaction to be consenting, because the transaction that the defrauded party is consenting to is not the transaction that occurs. Criminal conspiracy, formation of terrorist organizations, and other acts which affect far more people than just those who are consenting, are by definition not acts between consenting adults. That's like saying me punching you is a consensual act because I gave my consent.

Employment below minimum wage... that counts, yeah. There might be cases where someone voluntarily works for less than minimum wage out of the goodness of their heart, but it's of no significant benefit to society to try to discern between those few cases and the vast majority of cases where the employee simply lacks the bargaining power to get a better wage.

So yes, there are some actually consensual acts the government should regulate. I'm sure if enough people throw enough darts, we can come up with more than just minimum wage. In general, though, I think the government ought to leave people alone to as large an extent as possible without allowing some people to significantly degrade the lives of other people. I can't (and wouldn't) call out anyone here on this, but: it's somewhat frustrating to me that so many of the people who cry out for smaller government also cry out for government intrusion into things they dislike.

[Bob's World]

My Army Wife Daughter-in-Law just posted this on her facebook page. (In looks like the troops are keeping it real...)

http://www.youtube.com/watch?v=6x6m-...ayer_embedded#!

(PS, I love that this thread is in the "Politics in the Rear" category!)

[Ken White]

Thanks for posting that, it's priceless.

Big time Command / Leadership prob, though. Who they gonna relieve...

[JMA]

... the state never has any right to interfere in any voluntary interaction between two consenting adults.

Perhaps I can suggest you insert the words as follows:

"... voluntary private non-commercial sexual interaction between two consenting adults."

[DVC]

@DVC:
I read the bible, the whole book, when I was young(er). I treated it like a novel, and it didn't become boring until the Apostle letters.
I don't recall any part where Jesus says that the old laws are obsolete or even offers new laws. Instead, it's an interpretation that the now nicer good doesn't want us to follow the old harsh rules any more.

--------------------------------------------------------------------------

I explain the U.S. right's preference for following the thoughts of some 18th century guys instead of interpreting the constitution as a perfectly practical strategy (probably unconscious, though).

They're conservatives, and as such they naturally prefer no change over most reform proposals (by definition). An interpretation of the constitution that supports this is naturally welcome.
The phenomenon gained much force since the 2008 elections afaik, and the reason is even more obvious:
A very restricting interpretation of the constitution gives a legal argument (false or real) against the political opponent's intents. This legal argument can even gain support if the very same right is unable to achieve its goals through the normal political process (they were a minority in both houses & had lost the WH).

It's utterly predictable that the very same people won't discuss nearly as much about how the constitution is very strict and restrictive (for example the interpretation of the "welfare" part) once they themselves are in power again.

Watch the news about two certain new congressmen and the extremely rapid legislation to fix their gaffe (four minutes of discussion, no time to read the document beforehand afaik). It's obvious how much the constitution of the U.S. has become a political partisan instrument and how much the same people who yield it aren't really serious about it when it's about themselves.



The followers who buy into such partisan strategies because some opinion multipliers told them their stories are merely political tools.


Again: A strict interpretation of the U.S. constitution based on what the writers meant would restrict the right to bear arms to blackpowder weapons and non-firearms. Is that really a reasonable interpretation?

Many simply unacceptable things would happen if Scalia's legal theory of the constitution was really followed. It's basically unworkable.



Dueling. Conspiration for a crime. Forming an organized crime or terrorist organization. Development of a private nuclear weapon, chemical weapon, biological weapon.

Fuchs - Thanks for your thoughtful and thorough reply.

RE: Jesus and the New Covenant.

Desgleichen auch den Kelch, nach dem Abendmahl, und sprach: Das ist der Kelch, das neue Testament in meinem Blut, das für euch vergossen wird. Lukas 22:20

RE: Role of the U.S. Constitution. I think our differences point up perhaps the differences between a U.S. and European view.

I think the priorities for the founders were a high degree of individual liberty and rule of law. The two greatest threats to this were too powerful a government and the mob. Our Constitution which provides for limited government and strong Constitution protections for minority groups and opinions, is a very good answer to these concerns, concerns which are just as valid today as in 1787. I am very glad for our Constitution, that it is written and that is very difficult to change.

Unfortunately as good as it is, I don't think it will continue to be effective for long if we continue on the current glide path. DADT is one symtom of this. I agree with John Adams who said "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." I don't think we are a moral and religious people anymore, at least in the way Adams meant.

I won't presume to describe the European approach. Better to leave that to you. I perceive it to be significantly different.

RE: Right to Keep and Bear Arms. The Second Amendment says arms not black powder or muzzle loading weapons. I'd suggest that at least one of the purposes of the Amendment was to make sure the central goverment did not have a monoply on armed capability or, in the jargon of the DDR crowd, a monopoly on the means of violence.

Cheers

[Fuchs]

Lukas 22:20 doesn't say that the old testament is obsolete. That's merely an interpretation, and not a really obvious one.


The constitution says "arms" iirc, but it's obvious that by the time of writing nobody would think of smokeless propellant firearms. To assert that the constitution writers would have been fine with including smokeless propellant firearms as well, even semi-auto and automatic weapons (nothing of which existed at their time) means to interpret the text. It means to accept the view of the law shared by those who read protection for gays and women in the constitution.


A 18th century document won't save the American dream for conservatives, and to attach much hope to it looks ill-advised to me.
A return to constitution interpretations that weren't applied for generations is not feasible anyway - the consequences would be so large (and amendments impossible in the current U.S. political climate) that the state and society could collapse and revolution (with a new constitution) could follow.
The fiscal income distribution, the many tasks of the federal government that would disappear, the disappearing income tax, disappearing federal reserve - the list of things that are under attack by right wingers for being supposedly unconstitutional (because of interpretation) has become way too long.

Reality matches with the modern constitution interpretation (of the last about three generations), not with the early 19th century interpretation.


I'm aware that conservatism serves a purpose, just like brakes and reverse gear in a car. In the end, the net movement needs to be forward, though.

Morality cannot be imposed (and is in fact depending on cultural interpretation!). The answer to immorality in a society is to develop the society towards tolerance/resilience in regard to immorality, not to push for more morality. The latter rarely works at all, and yields terrible costs.

The use of an antiquated interpretation of an old rulebook is not going to serve the society.


Maybe the U.S. should have a look at France as an example; they are in their fifth republic now, and always ready to develop and adapt their constitution in response to political crisis.


I personally regret that the German politicians were too lazy to develop a new constitution in the 90's and instead adopted the old basic law as such (which was only meant as an interim solution). We could have inserted great improvements based on decades of experience and a growing readiness for more direct democracy. Well, we had a conservative government. You can't expect them to re-invent anything - it's simply not their style.

[Rex Brynen]

Maybe the U.S. should have a look at France as an example; they are in their fifth republic now, and always ready to develop and adapt their constitution in response to political crisis.

I think I just heard the sound of hundreds of (American) SWJ readers simultaneously choking on their coffee...

[Infanteer]

(ps, i love that this thread is in the "politics in the rear" category!)

FINALLY someone said it!

[Fuchs]

To be honest, I expected something along those lines...

[Brihard]

Maybe the U.S. should have a look at France as an example; they are in their fifth republic now, and always ready to develop and adapt their constitution in response to political crisis.

Wow. I totally just felt a great disturbance in the force.

And yeah, the 'politics in the rear' was inevitable, but I'm amazed how long that took.

[motorfirebox]

There's strong evidence within the Constitution itself that the authors intended that it, to some degree, grow and change with the times. Article 1 Section 9 prohibits Congress from restricting the slave trade--the "importation of persons", to use the exact wording--until 1808. This is pretty clearly a recognition of the fact that public views and the national sense of morality can and will--and, in the opinion of many founding fathers, should--change over time, and that the laws of the nation can and should be modified to reflect those changes.