Seeking for Righteousness

The Personal Blog of Kaimi Wenger

Lawrence, History of Criminalization, and Fundamental Rights

Dustin the Legal Guy — who is apparently one of a handful of other Mormon bloggers — recently posted an argument about the Supreme Court’s Lawrence decision which I find unpersuasive. Dustin writes that the question of whether homosexual sodomy can be classified as a fundamental right can be answered by the following formula:

All homosexual sodomy involves non-procreative activity

All non-procreative activity was subject to being criminalized

All activities that were subject to being criminalized are not fundamental rights

Therefore, all homosexual sodomy is not a fundamental right

Dustin’s argument, however, seems to contain at least two assumptions which look incorrect.

1. Is it true that “All non-procreative [sexual] activity was subject to being criminalized”?

As Eugene Volokh has pointed out, sexual activity between a man and a post-menopausal woman is not banned. Similarly, sex between an infertile woman and a man is not banned (or, at the very least, Dustin has not shown evidence that they were).

Critics of homosexuals generally often use scriptural arguments. However, some scriptural stories suggest that sex between a post-menopausal woman and a man was encouraged. (Think Isaac). In short, Dustin’s statement that “All non-procreative activity was subject to being criminalized” does not seem to have a basis in fact.

2. Even more problematic is Dustin’s argument that “All activities that were subject to being criminalized are not fundamental rights.” Excuse me? Probably every single fundamental right has been subject to being criminalized.

United States history is replete with instances of legislative criminalization of activity that courts then found to be fundamental rights. Just read Zenger, or look at the clear and present danger cases — they involved the criminalizing of kinds of speech. Important constitutional cases like Loving v. Virginia, Moore, Roe (whatever one thinks of it politically) would not exist if fundamental rights had not been subject to being criminalized. In fact, that tends to be how one finds out that something is a fundamental right — some legislature somewhere criminalizes it, and the Court strikes that down.

It is certainly still possible to argue that Lawrence’s reasoning is incorrect in attributing to private sexual activity the status of a fundamental right. But this argument cannot be based simply on a history of criminalization.

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July 18, 2003 - Posted by | Uncategorized

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