Homosexuality and Military Service (Merged thread)

[jmm99]

on the two questions:

1. Is it proper for a society or military to regulate or prohibit adult, consentual sexual behavior?

Yes. E.g., a prohibition vs male-female fornication on the sidewalks of Hancock's 200 block. Gee, maybe even a prohibition vs male-male and female-female "fornication" on the same sidewalks.

2. What is the basis of individual's rights and law?

In the US: "We the People of the United States ... do ordain and establish this Constitution for the United States of America." Always start with the People and Their Constitution.

Where you go from there, to establish a constitutional basis for gay rights, is not one of my priorities. I'd suggest that, so far as as "original understanding constitutional theory" is concerned, gay rights are definitely out there amongst the constitutional "umbras" and "penumbras".

Regards

Mike

[DVC]

on the two questions:



Yes. E.g., a prohibition vs male-female fornication on the sidewalks of Hancock's 200 block. Gee, maybe even a prohibition vs male-male and female-female "fornication" on the same sidewalks.



In the US: "We the People of the United States ... do ordain and establish this Constitution for the United States of America." Always start with the People and Their Constitution.

Where you go from there, to establish a constitutional basis for gay r'ights, is not one of my priorities. I'd suggest that, so far as as "original understanding constitutional theory" is concerned, gay rights are definitely out there amongst the constitutional "umbras" and "penumbras".

Regards

Mike

Not sure where Hancock's 200 block is, but it must be an "interesting" place.
Sex in a public place would seem to be close to the ultimate expression of one's identity, if that is determined by whom one has sex with. After all, there is no conclusive data that sex in public causes physical harm and do we really want servicemembers to have to hide who they love in order to serve their country?


I would propose that the Declaration of Independence's Preamble is best understood as establishing the basis and purpose of human government. The Constitution builds on that and in a government by the people, of people, for the people, is best understood as the contract between each and every citizen and each and every other citizen on how the federal government was to operate.

It seems many of the Founders had a very dim view of homosexual behavior, then called sodomy or buggery. Hard to see them acknowledging it as a basic human right or anything but a disqualification for military service http://www.wallbuilders.com/LIBissue...les.asp?id=101. If it is in the penumbra of Constitutional rights, it is so far in the penumbra as to make it in a different galaxy from the intellectual space or worldview that the Founders operated in.

[Deus Ex]

Not sure where Hancock's 200 block is, but it must be an "interesting" place.
Sex in a public place would seem to be close to the ultimate expression of one's identity, if that is determined by whom one has sex with. After all, there is no conclusive data that sex in public causes physical harm and do we really want servicemembers to have to hide who they love in order to serve their country?


I would propose that the Declaration of Independence's Preamble is best understood as establishing the basis and purpose of human government. The Constitution builds on that and in a government by the people, of people, for the people, is best understood as the contract between each and every citizen and each and every other citizen on how the federal government was to operate.

It seems many of the Founders had a very dim view of homosexual behavior, then called sodomy or buggery. Hard to see them acknowledging it as a basic human right or anything but a disqualification for military service http://www.wallbuilders.com/LIBissue...les.asp?id=101. If it is in the penumbra of Constitutional rights, it is so far in the penumbra as to make it in a different galaxy from the intellectual space or worldview that the Founders operated in.

The original Constitution allowed slavery. Please don't mire this debate in the inconsequential views the Founders had regarding homosexuality. Women also couldn't vote according to our Founders. Should our entire modern civilization revert back to what the Founders thought? Of course not. Your argument is absurd.

[DVC]

The original Constitution allowed slavery. Please don't mire this debate in the inconsequential views the Founders had regarding homosexuality. Women also couldn't vote according to our Founders. Should our entire modern civilization revert back to what the Founders thought? Of course not. Your argument is absurd.

Good morning to you too, Deus Ex. The 13th, 14th and 15th Amendments abolished the evil of slavery. The 19th Amendment established the vote for women. What amendment has made homosexual behavior normal and natural in the sight of the law or codified a changed view of this behavior from that held by the Founders and by extension their constituents?

Again the Constitution is the contract between each and every citizen and each and every other citizen on how we will be governed at the federal level. The contract has provisions for changing the contract. These changes are called amendments. Changes made to a contract, or to the clear understanding of a contract, made outside of the provisions for changing the contract enshrined in the contract, are wrong.

[motorfirebox]

The 13th, 14th and 15th Amendments abolished the evil of slavery. The 19th Amendment established the vote for women. What amendment has made homosexual behavior normal and natural in the sight of the law or codified a changed view of this behavior from that held by the Founders and by extension their constituents?

Such an amendment is unnecessary, unless you can show the Constitutional provision that restricts gay rights.

[DVC]

Such an amendment is unnecessary, unless you can show the Constitutional provision that restricts gay rights.

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.

The Founders, for example Washington and Jefferson, seemed to view sodomy as a crime. If they thought buggery was a basic human right worthy of protection against state interference, it seems they would have included it in the Bill of Rights. By comparison, many states had established religions and religious requirements mandated by law at the time of the drafting of the Constitution. The majority of Founders, including some very devout ones, found this objectionable, thus the religion clause in the first amendment.

So after 200 years, homosexual behavior, which had been held criminal at the time of the Constitution (Jefferson apparently wrote part of the Virginia criminal code that included sodomy as a crime) and ever since, suddenly becomes a constitutionally protected right. In my book for this to happen, should have taken a Constitutional amendment.

[Fuchs]

This is part of the reason why people go to study law before they become judges.

There are different theories for the interpretation of legal norms of any kind.

One legal theory is to attempt to meet the intent of those who powered the legal norm (such as the representatives and states which wrote an amendment). That's what you use and pretty much how AQ interprets the Qu'ran.

Another legal theory interprets legal norms as if they were written in our time. This one allows for changes of interpretation and is afaik the relevant legal theory, which has been used in the SCOTUS for generations (the right to bear arms would otherwise be limited to blackpowder weapons). It's also how enlightened Christians interpret the Bible (really, we don't stone people to death for almost everything although it's required in the Old testament).

[DVC]

This is part of the reason why people go to study law before they become judges.

There are different theories for the interpretation of legal norms of any kind.

One legal theory is to attempt to meet the intent of those who powered the legal norm (such as the representatives and states which wrote an amendment). That's what you use and pretty much how AQ interprets the Qu'ran.

Another legal theory interprets legal norms as if they were written in our time. This one allows for changes of interpretation and is afaik the relevant legal theory, which has been used in the SCOTUS for generations (the right to bear arms would otherwise be limited to blackpowder weapons). It's also how enlightened Christians interpret the Bible (really, we don't stone people to death for almost everything although it's required in the Old testament).

Fuchs - I think the first legal theory you point to is called originalism or textualism and the leading proponent on SCOTUS is Antonin Scalia and it seems to follow the basic lines of the Constitution means what is says and if it is silent on an issue, the issue should be left to the legislature.

The competing theory or theories I think are called "Living Constitution" approach this means IMHO that the Constitution should be interpreted according to current norms, mores, and sensibilities.

I know if I am party to a contract, and I am in regards to the Constitution as a U.S. citizen, I don't want it changed because one party unilaterally wants to make it fit their norms, mores and sensibilities. Capital punishment is a classic example. It was used fairly frequently at the time of the Constitution's ratification so how dare a modern court say it is unconstitutional today in and of itself unless the Constitution is amended to say what is formerly legal is now unconstitutional.

SCOTUS split 6-3 on the Lawrence. The majority appears to have followed some sort of living constitution approach finding that homosexual conduct was now a basic human right after being criminalized in most of the U.S. since before the ratification of the Constitution. The minority led by Scalia basically said the majority had feces for legal brains.

RE Christians and stoning. Christians don't stone and haven't, not because of some shifting modern interpretation of the Scriptures but because the New Covenant (Testament) has replaced the Old Covenant(Testament) and the Church's mission is to lead others to Christ, not to enforce societal order. That is the government's job.

Fuchs, have you ever read the New Testament? Cover to cover, not just bits and pieces? In your country, I believe those who called themselves Christians but interpreted the Scripture as though it was written in their time (1930s) ended up cravenly supporting Hitler. Many of the German Christians who took the New Testament as an unchanging guide, like Bonhoeffer, resisted Hitler and paid the price.

[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.

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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.

[motorfirebox]

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.

The Founders, for example Washington and Jefferson, seemed to view sodomy as a crime. If they thought buggery was a basic human right worthy of protection against state interference, it seems they would have included it in the Bill of Rights. By comparison, many states had established religions and religious requirements mandated by law at the time of the drafting of the Constitution. The majority of Founders, including some very devout ones, found this objectionable, thus the religion clause in the first amendment.

So after 200 years, homosexual behavior, which had been held criminal at the time of the Constitution (Jefferson apparently wrote part of the Virginia criminal code that included sodomy as a crime) and ever since, suddenly becomes a constitutionally protected right. In my book for this to happen, should have taken a Constitutional amendment.

Let me clarify. Such an amendment is unnecessary unless you can show a provision in the Constitution restricting gay rights. Such provisions exist restricting the rights of blacks (or, well, restricting the rights of slaves, which wasn't quite the same thing even back then but close enough) and women (through omission). That's a big part of why there are Constitutional amendments on those matters. So far as I'm aware--and I've looked--there's no such restriction on gay rights, even so far as any statement in the Constitution about sodomy. All such restrictions are in local and federal law, and can be dealt with in the same arena without making another addition to the Constitution.

[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.

[TheCurmudgeon]

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

Assuming one of the two consenting adults in the sole owner of the bank and he consented to the action, I would say yes. But by establishing that condition, it loses its criminal aspect. The problem is, buy the definition of "Robbery" is the unlawful taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear. Criminal intent (scienter) is an element of the offense. Hence, it is definitionally impossible for two "consenting" adults to commit robbery. If you are robbing a bank, one of the parties is non-consenting.

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

Actually, it is in the Tenth Amendment offers the people the greatest protection against Federal intervention, but it is almost never used : "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

In reality, the federal government cannot make laws prohibiting sodomy, which was the UCMJ article that prohibited homosexual conduct. (At one time it also prohibited oral sex between couples of the opposite sex too.)

The federal government has not legalized homosexuality. It never really had the power to make it illegal. It has the power to regulate the behavior of members of the military to maintain good order and discipline.

What the federal government does have is the power to exempt members of the military from certain local laws while they are on a military instillation. It will be interesting to see if we maintain concurrent jurisdiction in the future.

Now, the power to regulate the military expressly belongs to the congress under Article I, Section 8 ... "To make Rules for the Government and Regulation of the land and naval Forces ..."

Courts have given congress great deference.
"Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”1540 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1541 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” with respect to military affairs,1542 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.”" http://law.onecle.com/constitution/a...ed-forces.html citing Parker v. Levy 417 U. S. 733 (1974) http://law.onecle.com/constitution/a...ed-forces.html

[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."