Talk:Lawrence v. Texas/Archive 2

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This is an archive of past discussions. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Contents 1 Polygamy and adult incest forms of sexual intimacy? 2 new edits 3 "Landmark" and Neutrality's refusal to dialog here 4 Comparing the two versions 5 Neutrality is back and messing with the edit again 00:52, 21 Sep 2004 6 Martin v. Ziherl 7 Analogy to state courts 8 Goodridge 9 Prior Case Law Section

Polygamy and adult incest forms of sexual intimacy?

I stand by the statement placed in the article that polygamy and adult incest are forms of sexual intimacy. State non-recognition of marriage contracts have long been recognized to implicate matters of sexual "liberty" as protected by the Due Process Clause. Otherwise, decisions such as Loving v. Virginia (non-recognition of interracial marriages burdens liberty under the Due Process Clause ["The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."]) and Turner v. Safley (state must recognize marriage contracts made by prisoners) make no sense at all. By "vital personal rights," the Court was obviously referring in part to sexual intimacy. Non-recognition renders sex between these couples as fornication and thus criminal. Under the view of the person who edited my post, the government can recognize or not recognize whatever marriage contracts it wishes, as these do not implicate sexual liberty. The view of the Court has been the opposite. State non-recognition of marriage contracts that include more than two partners (i.e. polygamy bans) severely burdens the scope of sexual intimacy available to consenting adults. Q.E.D.

Even if you reject that obvious analysis, there was no warrant for erasing my citing adult incest as an area where the Court has allowed (remember, the Court's decision not to hear a case often means it believes the case presents no "substantial federal issue," tantamount to an affirmation of a law's constitutionality. I'm sure the Court has done this to challenges of adult incest laws) moral restrictions on the scope of sexual freedom to take precedence.

Ok, I thought I'd already made a post on the talk page, but I must not have saved it. First of all, I'll point out that you're either lying or a sloppy reader. I left the reference to adult incest in. Anyone who cares to review the main article's history can see that. Second, you are completely wrong about what the Court's decision not to review a case means--a failure to grant cert. can mean many things, and the Court has explained many times that its decision not to take a case should not be taken as a position on the merits of the case. See certiorari if you're still confused about this.

Third, your edit summary makes reference to the oral arguments to defend your proposition (an argument that certainly cannot be supported if one looks at the actual opinion in Lawrence) that adultery currently has no constitutional protection. But we do not generally look to statements made by one or another of the Justices in a majority, or propositions that may well be advanced merely for the sake of an argument, made during oral arguments. We look to the opinion, and the majority opinion in Lawrence embraces a very broad view of constitutionally protected sexual intimacy.

Fourth, WRT polygamy, you say that non-recognition of polygamous unions "renders sex between these couples as fornication and thus criminal." I'm not sure what century you're living in, but fornication, especially in light of Lawrence, but even as early as Eisenstadt, has been clearly recognized as protected sexual intimacy. So no, having an "open relationship" is not a crime that a state can constitutionally punish people for. And polygamy is still a relationship that the government chooses to recognize or not. It is not a form of sexual intimacy. It does not belong in that part of the article--if anything, it belongs with the discussion of same-sex marriage, since it involves many of the same issues.

I've edited the section on sexual intimacy back to the way I had it, leaving the references to adult incest and prostitution (as I did before), and deleting the references to adultery (constitutionally protected sexual intimacy) and polygamy (a form of relationship that may involve sexual intimacy, but would better be placed elsewhere in the article for fuller discussion). I have also clarified your triumphal section awarding Scalia credit for predicting Goodridge. (By the way, there's no "c" in that party's name.) Everything his dissent referred to was the interpretation of provisions of the federal constitution. Goodride was decided on adequate and independent state grounds, and Scalia did not so much as mention what effect Lawrence might have on state constitutional adjudication. Yes, Lawrence was obviously an influence on the Massachusetts decision, but Scalia did not predict it. SS451 17:19, 21 September 2005 (UTC)

1. adultery laws still stand see adultery. Do a google search.

2. Polygamy is a form of sexual intimacy. Polygamy statutes prohibit informal arragements that resemble polygamy. Thus, a man who marries and divorces seven times but still lives with all of the women is criminally punished for polygamy. See polygamy.

3. The decision of the MA SC could not have occurred without the US SC decision. This is because state Supreme Courts generally interpret their state constitutions in line with the federal constitution. It is also because of the slippery slope more generally.

Read over my new language, I think it achieves a compromise.

I can live with the new language, it's a decent compromise. I am quite certain, however, that no adultery statute would withstand a constitutional challenge. As to the Massachusetts Supreme Court decision, I very much disagree that state courts always interpret their state constitutions to be in line with federal rulings on similar provisions--see, for example, the New York Supreme Court's decision in People v. LaValle (summary at http://www.deathpenaltyinfo.org/article.php?scid=38&did=1066). There are other examples as well--suffice it to say, I do not agree that Goodridge could not have happened without Lawrence. However, again, because edit wars are ultimately unproductive and will tend to lower the quality of what is currently an excellent page, I'll accept the current language as an adequate compromise. SS451 17:43, 22 September 2005 (UTC)

new edits

I have re-edited the section under discussion above. I think that it's fine now. Comment on that here please. Thanks. [[User:Rex071404|Rex071404 ]] 22:36, 18 Sep 2004 (UTC)

Just now, I had to edit again, because Neutrality had again edited me without comment on this page, and without explaining himself via edit summary. This is a typical pattern of his when he overwrites edits of mine with changes. Please note that I have asked him to undertake mediation about this treatment of my edits, but he has declined that mediation. [[User:Rex071404|Rex071404 ]] 22:39, 18 Sep 2004 (UTC)

"Landmark" and Neutrality's refusal to dialog here

The issue of gay marriage is nowhere near being settled. It's only conjecture at this point that this case will ultimately stand and contribute to permanently re-shaping the law of the land. To refer to it as "Landmark" does I feel, overstate it's long-term potential. Many many conservatives are actively working to mute, mitigate and otherwise undercut its impact. Frankly, until those issues play out over the next 10-20 years, it is simply not sound and also too POV to refer to this as "Landmark" in any way. Frankly, I wish Neutrality would dialog here and defend his edits. [[User:Rex071404|Rex071404 ]] 23:06, 18 Sep 2004 (UTC)

I don't understand your point. Why is it POV to call it a landmark case? As far as I know, neither you nor Neutrality is a lawyer, and I don't know if Fred is still watching this page, so let me chime in with the view from the profession. As lawyers use the term, "landmark" doesn't mean "rightly decided" or "bound to remain the law of the land forever". For example, two of the cases I mentioned above, Dred Scott v. Sandford and Plessy v. Ferguson, are no longer good law and would find few defenders today. Nevertheless, both were important and both are included on the site http://www.landmarkcases.org (not that one site proves anything, but numerous other such uses could be cited, including the Wikipedia article on Plessy v. Ferguson). JamesMLane 00:05, 19 Sep 2004 (UTC)

Indeed, the statement that "Many many conservatives are actively working to mute, mitigate and otherwise undercut its impact" is further proof that the decision is "of unusual historical and usually aesthetic interest" [1] (the statment may also be taken so as to demonstrate that the decision may be considered an ideological "boundary" [2]). Hyacinth 00:15, 19 Sep 2004 (UTC)

"Landmark" refers to important, often disruptive, decisions like Roe v. Wade which seem to mark a new pattern which this case qualifies as, for those interested in the matter. It carries little implication of right or wrong, just that it concerns a matter of public interest or significance. Fred Bauder 01:31, Sep 19, 2004 (UTC)

I refuse to "defend [my] edits" on such an inane and petty issue. I — and all well-intentioned Wikipedians — have better things to do than to "dialog" with Rex over an extremely minor issue. I am open to talk and dialog with reasonable users, and I am quite friendly with most Wikipedians who have different opinions than I (for example, Gerald Farinas). However, Rex has repeatedly shown himself unable to rationally discuss issues. I ask the Arbitrators to consider making Rex's injunction permanent, and to extend it to other articles (in the case of Lawrence v. Texas, featured articles) where Rex is being disruptive. [[User:Neutrality|Neutrality (talk)]] 02:33, Sep 19, 2004 (UTC)

Personally, I don't think it's a "Landmark" yet. Nor do I think it will ultimately become one before being overturned or mooted in some fashion. But provided that it's described as "influential" rather than "important", I'm ok with it. On the other hand, I'd like to point out that Neutrality's view of this being "inane and petty" ought to call into question, if that's what he thinks - that this is not significant enough to dialog over, why was it significant enough for him to start a revert war with me over? To me the answer seems obvious: Neutrality - like a few others I have run across - apparently think that their assessment of me as being "disruptive" gives them carte blanche to run roughshod over my edits and ignore my views so far as developing consensus goes. [[User:Rex071404|Rex071404 ]] 03:10, 19 Sep 2004 (UTC)

Influential/important/landmark? I'm afraid I just don't understand the point of this discussion. The three words are not far away from being synonyms, so why are you insisting on arguing the point? Change the damned thing. Ambi 03:12, 19 Sep 2004 (UTC)

The point is that I tried to change it the other day, and Neutrality reverted me (4) times with no dialog. Now he says it's "inane" to discuss it. If that's what he thinks, he should have stayed out and left my edit be. Either that, or talk here. He did neither. Instead, he made an edit war and now he calls me disruptive. Interestingly enough, the section under discussion is getting better by all this. [[User:Rex071404|Rex071404 ]] 03:17, 19 Sep 2004 (UTC)

You tried to change it to "disruptive", not "influential". After the edit war began, you then insisted on a synonym of the original word as a "compromise". For what point? Ambi 03:19, 19 Sep 2004 (UTC)

Look, over 60% of American are opposed to gay marriage. That is a fact. This means that if we were going to prognosticate about what people might think about this ruling in the future - which is what the sentence I originally edited was about, then we ought to have at least had it be reflective of what a large majority of people consider the entire gay marriage drive: disruptive (see above). Even so, through discussion and agreement, we are arriving (or perhaps have arrived) at a textual version we can all accept. To me, that is what Consensus decision making is all about. So when you ask "for what point", I've answered that. At the same time, the other interested editors objected, so I agreed to soften the language. That's what compromise is about. Certainly it's not written in stone somewhere that the text - as it was when I found it - must always and forever more not change, right? What I have done is add some perspective from a conservative viewpoint. This, I feel, makes that small section of text less POV and also is not that big of an imposition on the totality of the article. Frankly I fail to see why some here got so exorcized about a little bit of editing. [[User:Rex071404|Rex071404 ]] 03:29, 19 Sep 2004 (UTC)

Adding perspective from a conservative viewpoint is excellent. But changing the term to "disruptive" was not neutral, regardless of what 60% of Americans believe. As an analogy, large portion of the world's population believe that Bush is "disruptive", but if I put "Bush is disruptive" in that article, it would quite rightly be removed. If you feel that the article isn't also representing the views of those people, then fix it - but don't simply whack your own opinion in there as fact.

Of course it's not written in stone, but when you change it to something biased, and then retract that and accept the original version as a "compromise" after an edit war, it seems as if you're setting out to waste time. I'm trying hard to assume good faith here, but I just can't understand what you're trying to do.

(Please go back and re-read the previous versions - what is there now absolutely is not what was there before. You ought to double-check better before you erroneously accuse. [[User:Rex071404|Rex071404 ]] 04:00, 19 Sep 2004 (UTC))

I was referring to the kicking up about the use of "important" or whatever word it was. Ambi 04:02, 19 Sep 2004 (UTC)

Wikipedia needs conservatives who can correct liberal biases in articles, if we're to be truly neutral. But honestly, why not take a lead from some other conservatives on Wikipedia, and try and improve the neutrality of your own writing? You could do a lot for Wikipedia, but by pulling stuff like this, you just cause some disruption of your own. Ambi 03:57, 19 Sep 2004 (UTC)

Ambi, your staunch refusal to open your mind enough to grasp why "important" was subject to a valid edit by me, indicates that you are not understanding or perhaps caring about my views here. That's too bad, because JamesMLane did seem to understand and he made an edit which was very helpful in advancing the issue towards resolution. Have you read the previous iterations? Have you read all my comments on them? Please advise. [[User:Rex071404|Rex071404 ]] 04:20, 19 Sep 2004 (UTC)

No, Rex, I did not understand. What I wrote was, "I don't see how 'important' or 'significant' can be considered to endorse the decision. ... I think 'important' is the best concise way to convey the point." I went along with not using the phrasing I thought best only because I'm sick of these endless edit wars over minor points, a phenomenon that seems to occur disproportionately often in articles you're involved in. It would be a misinterpretation of my views to suggest that I saw any validity to your edit. Please don't try to bring me in as a witness on your side. I agree with Ambi. JamesMLane 15:54, 19 Sep 2004 (UTC)

JML, whether you were merely patronizing me (as you seem to now be saying) or whether you actually heard my point of view, the truth is that you actually did propose some helpful compromise text. Having said that, it's sad to see you say that the only reason you bothered to do that was because you are "sick of these endless edit wars over minor points". Frankly such comments puzzle me and again I raise the question: If the edits I am making are indeed "minor" (as you clearly are saying that they are), why is it that people such as Neutrality are going out of their way to revert me multiple times on them? And more so, if my edit is minor, how can it be totally lacking in "validity" in your view? Why are you even imposing a "validity" test on "minor" edits to being with? [[User:Rex071404|Rex071404 ]] 21:55, 19 Sep 2004 (UTC)

I was not "imposing a 'validity' test". I was essentially ignoring the point until you made a comment that, frankly, struck me as putting words in my mouth. You're quite entitled to comment here that a particular edit of yours was valid. Your next sentence, though, accused Ambi of not understanding and said that I did seem to understand. I perceived that (rightly or wrongly) as conveying a false impression that I agreed with you when, in fact, I agree with her. As for Neutrality's conduct, people will sometimes differ over whether a particular point is minor. There seems to be consensus on the point that I'd consider non-minor, namely the adoption of Fred's suggestion to insert a couple comments about the impact of the decision, so that anything POV is attributed rather than asserted. Beyond that, I haven't gotten involved except for the crucial matter of correcting the garbled ellipsis mark.  :) JamesMLane 22:49, 19 Sep 2004 (UTC)

Just for the record; 80% of today's Louisiana vote total was against gay marriage. [3] Now other than proving that some people might want to call them bigots (perhaps), this also tends to support my contention that "disruptive" is indeed what a majority would tend to view this ruling as. Even so, I submit this fact only to illustrate earlier comments. I will not be re-inserting that particular word - for the reasons listed above. [[User:Rex071404|Rex071404 ]] 07:01, 19 Sep 2004 (UTC)

The word disruptive is POV. Just because it may be a majority vote (though only slightly and not at all in many circles) doesn't stop it being POV. If something is important it doesn't imply that it's not disruptive as well. Neutrality should've commented here before reverting too many times but, imo, he was right to revert it. End of discussion anyway (surely) as the dispute has now been resolved. violet/riga (t) 08:45, 19 Sep 2004 (UTC)

I feel that my initial edit to "disruptive" did not require prior discussion because as I have explained, it is the view of 60%+ of Americans. Even so, let's say for the sake of argument that my usage of "disruptive" existed as being valid only in my own mind. Even with that as the case, my edit - when it was made - was made on a basis of being understood by me as being valid. In other words - in good faith. This being the case, when Neutrality came along and disputed my edit with a reversion (not a subsequent edit) he turned my efforts from being a mere edit to a controversy. And it is at that point - a reversion that Neutrality was by rights, obligated to dialog. To me it's obvious that reversions are by their nature more controversial than edits and as such, carry a higher burden to dialog each of them than edits do. This is especially true when a user (such as Neutrality did here) reverts another four times in a very short period of time. Also, for the record, it should be noted that (at least as best as I can remember) most (if not all) of the revert battles I have been in did not orginally start with me making the 1st revert to the text in dispute. Rather, it was an edit by me, followed by a reversion by someone else which was the sequence of events. Having said this, I do agre that the issue is resolved (as best as I can tell). [[User:Rex071404|Rex071404 ]] 22:18, 19 Sep 2004 (UTC)

"it is the view of 60% of Americans..." - see Fallacies:Appeal to the Majority --kizzle 18:15, 20 Sep 2004 (UTC)

It would only be a so-called "fallacy" of logic if I were trying to say that the 60% view is proved "correct" because 60% agree with it. For those who bother to read my comments though, they will see that I cite the 60% only to corroborate what the 60% believe, not to argue that what the 60+ believe is correct by virtue of the fact that 60+ believe it. Frankly, I tire of being harrassed with inane rebuttals by this "kizzle". [[User:Rex071404|Rex071404 ]] 20:21, 20 Sep 2004 (UTC)

Can we settle this now?

• The word "disruptive" is slightly POV in this context and it would be best not to use it
• Neutrality is not replying and the discussion is not progressing
• The revert/edit war is over and the situation resolved

violet/riga (t) 20:30, 20 Sep 2004 (UTC)

I agree with Violet/Riga - the issue is resolved. I feel that Kizzle is beating a dead horse. [[User:Rex071404|Rex071404 ]] 20:43, 20 Sep 2004 (UTC)

I agree, sorry to bring it back up. --kizzle 20:33, Sep 20, 2004 (UTC)

1. "I feel that my initial edit to "disruptive" did not require prior discussion
2. because it is the view of 60%+ of Americans"

no that's exactly what you're doing. i agree it merely corroborates, but if you have another reason which you imply direct causation, then state that reason instead of the 60% stat you use across the board. --kizzle 20:29, Sep 20, 2004 (UTC)

I don't think that I was doing that. The 60%+ fact supports the word "disruptive". On the other hand, there is no consensus or majority view - among the USA citizenry - that the case is "most important" or even "important". The word I replaced was less on point than the word I replaced it with. The sentence originally read "Some suggest that Lawrence v. Texas may eventually come to be seen as one of the most important decisions by the United States Supreme Court.". To this, my edit was a big rhetorical "so what"! At least my edit had the 60%+ to support the "some" in my version of the sentence. Who are the "some" that the sentence referred to before I arrived? The answer is: gay activists. This sentence and the warfare Neutrality started over my edit to it is a 100% perfect example of the incredibly systemic liberal bias imbued onto parts of this Wiki. The word "important" was never flagged as being the mere supposed opinion that it is - why? Because basically all the editors on that page agreed with a view that the case is most important. And if not, how did that word stay in there so long as the unchallenged speculative opinion it is - all the while the article was progressing towards featured status? [[User:Rex071404|Rex071404 ]] 20:45, 20 Sep 2004 (UTC)

i thought the issue was resolved ;) --kizzle 20:58, Sep 20, 2004 (UTC)

Comparing the two versions

Also, if anyone wants to see the two versions both old (when this edit issue started) and new (when it ended) they can do so here

[[User:Rex071404|Rex071404 ]] 22:30, 19 Sep 2004 (UTC)

If the new version is to read:

Lambda Legal, which brought the case, hailed the decision as "a legal victory so decisive that it would change the entire landscape for the LGBT community." [4] Jay Alan Sekulow of the American Center for Law and Justice has referred to the decision as having "changed the status of homosexual acts and changed a previous ruling of the Supreme Court… this was a drastic rewrite." [5] These reactions reflect widespread opinion that Lawrence v. Texas may ultimately be one of the Supreme Court's more influential decisions. Broader implications of this decision have been speculated, including the following:

Then I support it. That's not the POV dispute I remember from a few days ago; I don't have a problem with the wording I've just cited. — OwenBlacker 20:44, Sep 20, 2004 (UTC)

The version shown above is the current version - so far as I know. [[User:Rex071404|Rex071404 ]] 20:48, 20 Sep 2004 (UTC)

So I notice, now I stop archiving old content and actually bother checking ;o)
I'm definitely pro-gay, so amn't unbiased, but it seems adequately NPOV to me. — OwenBlacker 20:50, Sep 20, 2004 (UTC)

Neutrality is back and messing with the edit again 00:52, 21 Sep 2004

Just now, I had to revert Neutrality as he is back messing with the same section that we, the cooperating editors had succeded in reaching agreement on. And he's still not joining the dialog here. [[User:Rex071404|Rex071404 ]] 00:52, 21 Sep 2004 (UTC)

Now Neutrality is playing head games. He just left an edit summary which indicates that he intends to (or did) change the previously disputed section again, yet there is no change. I think that he should be banned from this article if he refused to dialog. [[User:Rex071404|Rex071404 ]] 01:15, 21 Sep 2004 (UTC)

It seems rather clear to me that Neutrality was simply offering an explanation for his earlier change... seeing as how you seemed to take issue with it. For you to call this "playing head games" is antagonistic and unhelpful. Furthermore, I find it curious that you are now complaining that Neutrality did NOT edit your reversion. So, damned if he does and damned if he doesn't?

Also, to those who seem to think that "disruptive" is so terribly POV. Stop saying that the WORD is POV and please realize that what you are really objecting to is its use here. The word itself is not POV, it simply indicates that something is being disrupted. As for its usage here, I'm not entirely certain that its inappropriate. Since LvT explicitly overrules BvH, it can be viewed as extremely disruptive, especially since it invalidates sodomy laws in a number of states and (if Scalia's "warning" is to be believed) could "threaten" other laws justified on moral grounds. Sounds disruptive to me... --Dante Alighieri | Talk 00:42, Sep 23, 2004 (UTC)

Dante, I agree that it is the use of the word that constructs a POV. Of course, in a technically accurate sense either word would work, but we would then be blind to the inherent emotional connotations in each example. To gay activists, "disruptive" is connotating disapproval with the decision, as we normally use "disruptive" in a negative sense. "Important", to people with more traditional values who view marriage as necessarily between a man and a woman, improperly connotates a sense of approval and puts the decision in a positive light. It is not only the content but the form of the message that is able to contain POV. --kizzle 01:20, Sep 23, 2004 (UTC)

Hmmm... it seems on the basis of Dante's and "Kizzle"'s comments, that there is sufficient rational justification for my previous edit, that it should not have been rejected out of hand by Neutrality. This proves my point that Neutrality was remiss in failing to dialog. [[User:Rex071404|Rex071404 ]] 03:41, 23 Sep 2004 (UTC)

Martin v. Ziherl

Is this an appropriate article in which to post one effect of this case, the decision of the Virginia Supreme Court in which it struck the State fornication laws invoking Lawrence as precedent?

It is expected to cause similar knock-on effects over time as similar laws are challenged in court. I doubt there will ever be an appeal up to the US Supreme Court because State courts will either do it themselves or the Circuit Courts will, and nobody will ever likely appeal that far up.

CNN article on Martin v. Ziherl

--Newprogressive 08:07, 7 Feb 2005 (UTC)

This case now has its own article. See Martin v. Ziherl. Postdlf 03:38, 2 Apr 2005 (UTC)

---

I Moved Sex-related court cases over from http://Everything2.com where I created it when I discovered Wikipedia. I note that Virginia's Supreme Court relied exclusively on Lawrence v. Texas in Ziherl. It never even noticed that state's Supreme Court decision in State of New Jersey v. Saunders which ruled that state's anti-fornication statute was unconstitutional. Paul Robinson 08:16, 29 October 2005 (UTC)

Analogy to state courts

I question this recent addition, following the discussion of reference to foreign decisions: "Furthermore, proponents of citations of foreign courts' rulings point to the common practice of U.S. state Surpreme Courts' citations of other states' courts, though the latter have no legal weight at all for other states." This analogy seems strained. Who makes this argument? We should attribute it or delete it. JamesMLane 11:38, 10 Mar 2005 (UTC)

No one has defended the sentence, so I'm deleting it. JamesMLane 17:48, 23 Mar 2005 (UTC)

It is a proper analogy, because the courts of one state are a foreign jurisdiction to those of another, but they are still cited in order to persuade one state to follow the lead of another. U.S. courts citing to courts of other countries is used the same way. Postdlf 18:41, 23 Mar 2005 (UTC)

The analogy to another state, where the law is likely to be much more similar, is certainly stronger. Is there any notable spokesperson who has actually made this argument in the specific context of Lawrence v. Texas? If so, I don't object to including it, but if it's just a possibility that occurred to an editor, I don't think it's appropriate. JamesMLane 19:29, 23 Mar 2005 (UTC)

I can't name any names, but I know I've heard law professors make that comment. It's a fairly obvious one to make. Postdlf 05:24, 24 Mar 2005 (UTC)

All USA states ultimately derive their authority and legal standing from their inclusion as part of USA. That same USA is (or is supposed to be) subordinate to US Constitution. As such, all US state laws must ultimately comport with US Constitution. Not so for foreign laws. External-to-USA laws are - by definition - not properly premised on USA constitution. However, Internal-to-USA laws are supposed to be. Hence, if and when USA Supremes compare and cite USA state laws, there's no foul - it's within their purview to cite what they deem as valid references that are founded under USA law. It's when they go outside the scope of USA law that they exceed their mandate. 216.153.214.94 23:22, 23 Mar 2005 (UTC)

I think "mandate" is a rather odd word to use when you're talking about what a judge may consider as persuasive. A judge doesn't have an express "mandate" to consider the arguments in law review articles either, but it's a widespread and unquestioned practice. Why should a foreign law or judgment be any different? It's simply an example of how another society has resolved an issue, and the extent to which that society is similar to ours is the extent to which the result will be persuasive or relevant.

It's true that it's more likely that the laws of one state are generally going to be more similar to another than the laws of one country to another, but there is still significant variation regardless of the common Constitution because the Constitution simply doesn't regulate all areas beyond a minimal level of due process protection. Most countries that our judges would be looking at would likely going to guarantee some kind of similar fair process as well. And on the other hand, states come to quite opposite results on certain issues in legislation and in court decisions. Is sodomy legal or criminal? Prior to Lawrence v. Texas, the Constitution didn't constrain that state decision in any way and there were varying results.

On a tangential note, your comments about the authority of state governments are rather contrary to the traditional view of states as sovereigns embraced under the federal system; states really gain their authority and legal standing from their own constitutions, which are subject to the federal constitution but not derived from it in the sense you imply. Postdlf 05:24, 24 Mar 2005 (UTC)

Re: "Postdlaf" - Regarding "Mandate", please see #2 of this definition [6] - and in doing so, don't get confused by the word " representative" it's not used there in the political sense. Suffice it to say, the "mandate" of USA Supremes certainly is to interpret the law and make rulings. But what "law" is the question. It's axiomatic that USA Supremes interpret and apply USA law. Hence, they exceed their mandate when they inject referrences to foreign law. Foreign law is just that, foreign. References to it do not belong in the logic flow of USA Supremes deliberations or rulings. If and when a non-USA legal concept is incoporated into USA law formally, by Congress, then it's germane and not until. It's simply NOT relevant if non-USA law is persuasive or not, it's not USA law and it's not APPLICABLE. Perhaps you are fixated on "mandate" - would the word "charter" work better for you? The US Constitution is our "charter" and it does not allow for examining foreign laws, except in narrow ares such as treaties. Now, as for USA states, they are NOT sovereigns, rather- they are semi-autonomous - yet subordinate, constituent components of USA as a whole. Nothing a state does, can exceed the scope of authority allowed it under USA Constitution. On the other hand, many areas of law are left to the states - up to a point - beyond which the Constitution does not allow. This is precisely what Lawrence V. texas was all about - US Supremes said states are NOT allowed to legislate against sodomy as Texas did because - according to the Supremes, US Constitution disallows such constrictions on personal liberty. Liberals applaud this as being an expansive interpretation, Conservatives deride it as being confabulatory (which by the way, it is). 216.153.214.94 16:57, 24 Mar 2005 (UTC)

I don't want to get too bogged down in an argument about semantics over state's rights (which I really don't care very much about, personally) but yes, obviously the U.S. Constitution imposes some limits on states, but it doesn't grant them everything they can do except in the negative, under the Tenth Amendment; whatever hasn't been delegated to the federal government or preserved as individual rights has been left to the states, and the states get the authority that fills this gap from their respective constitutions.

Regarding your other comments, I don't think you understand the nature of persuasive authority (kind of an oxymoron, but what can you do). The Constitution doesn't restrict what a judge may consider to resolve an issue—amicus briefs, law review articles, state court opinions, federal court opinions, English common law, the opinion of his clerk, the opinion of his janitor, the opinion of foreign courts or legislatures. None of these tell her what to do (that's the role of U.S. constitional and statutory law, which obviously don't resolve the issue or else the judge wouldn't be looking elsewhere), but they all give her a greater understanding of the issue. When the Court is considering whether homosexuality, as an expression of adult sexuality, is a function of personal liberty, this is a question about human nature—what is integral to our identities, our autonomy. How other democratic societies deal with that at present and why can't be rejected as irrelevant (and it certainly should bear more weight than what ancient societies did that are far removed from our respect for individual liberty, notwithstanding Burger's horrendous Bowers concurrence). The Court considers what led to those conditions, and why it would or would not work in the U.S. Similarly, when a state court is considering whether to recognize a new civil cause of action, for example (something the Constitution would be utterly silent on) it would look to how many other states have recognized it or rejected it and their reasons for doing so, and will conclude that they "find the reasoning of [their] sister state most (un)persuasive" and so on. Postdlf 18:19, 24 Mar 2005 (UTC)

You are overcomplicating this. Let's say for a minute that USA Constitution says "no eating Swiss Cheese" in America. If that were the case, US Supremes would be allowed to look abroad to gain understanding of what Swiss Cheese is, but not why people in USA should be allowed to eat it. For example, even if 100 million people in Europe say "Swiss Cheese is good for people", under the USA rule of "no Swiss Cheese", such sentiments are irrelevant. Likewise, the associated concepts of any evolving social contracts from Europe are simply not relevant to USA law. The will of the USA is expressed in law by Congress. It's up to Congress to inject (or not) extra-USA concepts and ideas into USA law, not the US Supremes. 216.153.214.94 04:32, 30 Mar 2005 (UTC)

Your analogy is not a very good one; it's really a straw man because no court tries to avoid direct and explicit commands or prohibitions in the Constitution, and no court would ever look to foreign law to determine whether the Constitution should be followed—it's a given that it must be. The question is what does the Constitution mean, what did it mean, what can it mean, or what should it mean (and judges differ on how much they will consider one of these questions of interpretation). The usefulness of looking abroad comes in when the Constitution is broadly phrased (some would say vague). "Due process", "equal protection", and "liberty" are not defined by it; all obviously pertain to something very important to individual lives. Say federal law prescribes exactly what articles of food everyone in the U.S. must eat, down to the last pat of margarine. The Court is asked to invalidate this law as contrary to 5th Amendment substantive due process protection of liberty. The Court then examines what liberty interest someone has in deciding what to eat—how important is choice of sustenance to self-determination, to realization of one's identity, to being human? How have other democratic societies addressed this? The fact that it wouldn't even occur to any other country in the world that it was proper to dictate all eating habits is irrelevant to this inquiry? One can disagree, obviously, but it's certainly not the clear command of law you believe it to be. Interpreting statutory law may be a different matter, but that's not where this issue arises, so what Congress does or does not "inject" into federal legislation is really irrelevant (and how much Congressional intent matters is a matter of debate anyway). Postdlf 05:36, 30 Mar 2005 (UTC)

Please re-read my post. I did not use "federal law" as an example. Rather, what I said was "Let's say for a minute that USA Constitution says...". The highest written referrence that Supremes can refer to is the Constitution. Therefore, in my example, there is no other document which can be cited or referred to that has "trumping" power over it. Now as far as how to interpret the, as you say "vague", aspects of that document; again I will point out that what's done elsewhere is of no relevance. Foreign laws, customs and practices simple have no bearing on internal USA issues - excepting only those that are directly related to treaty issues. Now since you to don't grasp the "cheese" example, I will give you another one. The laws of any given country can be likened to a large rain umbrella which stretches from one border of that country to the other, not extending beyond there border itself, hence the concept of sovereignty. In other words, in each country, the soverign power of that particular country is manifest via its laws - which stretch to its borders, but not beyond (and please don't complicate this example with naval or treaty issues). Now in the USA, all of our laws must past muster with US Constitution or else they are invalid. In our "umbrella" view, the handle of the umbrella is the Constitution. All USA laws must properly connect to and/or rest on it or they are not valid. Well then, what holds up the "umbrella of law" in China? Or Sudan? Not the USA Constitution, that's for sure. Of course, in tyranical countries, the radical differences are easy to spot. Well then, what about Sweeden? Or France? It matters not that those places have a "handle" which is their local Constitutions. Rather, what matters is what their laws (umbrellas) don't have. They don't have as a starting predicate, the USA Constitution and therefore, it is simply not relevant to our internal doings, what goes on underneath their umbrellas. The French conception and practice of "due process" simply matters not to USA legal examinations. For example, if I am not mistaken, France allows arrestees to be held incommunicado for 48 hours after arrest, without any attorney and also allows for corporal interrogation techniques (ie: slapping the person around to get answers). So are we in USA to adopt that too? Simpy because it's "due process" in France? Due process means just that; all the process that's due under the standards which are in place. When you allow the US Supremes to make ad-hoc piecemeal referrence to extra-USA law, you are allowing them to perform the act known as "incorporate by referrence" - because USA Supremes rulings, via precedent (stare decisis) become the law itself and if extra-USA items are injected into the rulings they are injected into the law. This is plain and simply a breach of the court members fiduciary duty - and oath (ie; "mandate") [7]. 216.153.214.94 18:02, 31 Mar 2005 (UTC)

Goodridge

Any plain reading of Goodrich, makes it clear that the majority did indeed draw on Lawrence to help form the foundation of Goodrich. Suffice it to say then, it matters not that "*dissenting* opinions" mention Lawrence in some manner also. What matters is that case law is NOT made by the dissenters, but rather it's made by the majority. And the majority in Goodrich did indeed draw on Lawrence. There's no "hysteria" here, except on Ray Radlein's part. There is nothing wrong, POV or inaccurate about this sentence: Scalia's prediction about same-sex marriage was proven accurate with the subsequent GOODRIDGE vs. DEPARTMENT OF PUBLIC HEALTH ruling, which explictly cited Lawrence. [8] 216.153.214.94 02:58, 2 Apr 2005 (UTC)

Well, I have a feeling that I'm going to step in it here, but I deleted the two references to Goodridge. Though the decision does sort of draw of Lawrence in an ideological way, it was decided exclusively on state constitutional grounds, and thus could not possibly have drawn directly on Lawrence in making its core holding. To say that Scalia's prediction that Lawrence would lead to a federal constitutional requirement of marriage equality has been borne out by Goodridge is to badly misrepresent what the actual legal underpinnings of that case were. If someone wants to stick in a reference to Goodridge under "Broader Implications," that would probably be valuable, provided that that blurb explicitly acknowledges that the influence that Lawrence had could only have been in a persuasive sense, not in a binding legal one.

Oh, and I also did a little bit of expansion in the aforementioned "Broader Implications" section, so if anyone has any comments on what I added, I'd be glad to discuss. SS451 02:48, Apr 15, 2005 (UTC)

Why don't you go ahead and and re-insert information about Goodrich, in the manner which you prefer? After all, you did say "that would probably be valuable". Rex071404 ^{216.153.214.94} 03:52, 15 Apr 2005 (UTC)

Also, Scalia's prediction is a fact and should be included. Whether it's been proved true is open to debate, but both sides could be presented, rather than Scalia being deleted. Rex071404 ^{216.153.214.94} 04:02, 15 Apr 2005 (UTC)

The information that Scalia felt that the Court's decision would call into question state laws banning same-sex marriage is already included in the article. As for the mention of Goodridge, I'll insert it a little later this evening. SS451 00:48, Apr 16, 2005 (UTC)

Okay, just put in a blurb about Goodridge that pretty accurately sums up its relationship to Lawrence, I think. It's under the first bullet point in the "Broader Implications" section, and I'd be glad to hear any feedback. SS451 03:49, Apr 16, 2005 (UTC)

FYI friends: It's definitely "Goodridge" and not "Goodrich"--despite the repeated use of "Goodrich" by the Washington Blade's own Jeff Gannon.--Erin1983 02:44, 13 October 2006 (UTC)

Prior Case Law Section

After not really paying attention to this article for a while, I have revisited the "prior case law" section and noticed that many of my changes were reverted. [9]. I honestly think that a lot of this section is a POV narrative explaining the author's opinion that Lawrence V Texas and most prior cases were decided based upon the court consulting prevailing societal attitudes of the time. Here's a good example:

The Court's decision in Bowers may have reflected its historical circumstances: the AIDS epidemic was just coming into national consciousness, and with the Court's decision in Roe v. Wade having come under heavy attack, the Court stood reluctant to extend Roe further.

The author's POV seems to be that as mores changed, the court had to modify the law in order to keep it relevant. Strict constructionist adherents would vehemently disagree with this POV. I propose that we edit this section mercilessly and transfer some of the more sourceable facts to either Sodomy laws in the United States or Sodomy law. This section should summarize the judges' view case law as stated in Lawrence v. Texas court case, not develop wikipedians' best explanation for the history and rationale for US sodomy laws. Where possible, the resultant summary of Lawrence v Texas prior case law should quote the words used in the decision to eliminate accusations of POV-pushing. MPS 16:36, 29 November 2005 (UTC)

Where does the article say that the court "had to modify the law"? You are mischaracterizing the section.

I have had this debate before with users who seem taken aback when one tries to put SC decisions in historical context. There is a feeling that any attempt to do more than summarize the text of the decision would be POV. But this is silly: it would be like describing how a Civil War battle (say, Sharpsburg) was fought without explaining why the armies were in Sharpsburg in the first place.

The point is that Supreme Court cases make no sense if they are taken out of historical context.

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