Tuesday, March 01, 2005

Decency Update

The US Supreme Court has ruled application of the death penalty to children to be unconstitutional. Good.

My worry, as with the court's 2002 overruling of capital punishment for the retarded, is that piece-meal abolition of the most heinous aspects of death penalty machinery could serve to validate the general practice. I.e., abolition of the most obvious abortions of justice in US death penalty practice could be used by cynics to argue that standard application to adult, fairly tried, mentally competent convicts passes moral muster.

That said, this decision is still worth celebrating. And the best should not be made the enemy of the good.

Now for the tragifarcical: Andrew Stuttaford, a decent guy as far as I can tell and by a lot my favorite contributor to the Corner, lauds the SC ruling. Scroll up and watch his fellow Cornerites shit on him. I remember when my old boss Michael Walzer ruffled some feathers by asking "Can there be a decent left in a superpower?" (He wasn't optimistic.) I still hold out hope that there could be a decent right, but that hope is fading.

The most egregious response to Stuttaford might have been this gem from the aptly named Shannen Coffin:
The basic reasoning in this decision, which gives five unelected justices the ability to decide what is best for all of us, is exactly the same reasoning that led to the unyielding legal protection for abortion in Roe v. Wade and Planned Parenthood v. Casey, as well as the recent decision in Lawrence v. Texas, which constitutionalized homosexual sodomy and led directly to the state judicial decisions requiring states to legalize gay marriage.
I don't want to get into the abortion issue, since we've discussed this fairly recently. I also don't want to talk about gay marriage---you can check out the summer archives; I'm still too burnt out to do a theoretical rehashing of that argument. So I'll restrict myself to commenting on Coffin's point about "homosexual sodomy."

The term itself is a giveaway of what was under discussion. Texas, and a number of other states pre-Lawrence, had legislation on the books that did not ban sodomy simpliciter, i.e. did not ban non-procreative sexual interactions in general, but only banned sex between persons of the same gender; and occasionally, outrageously, these laws would be enforced. The argument is therefore not about whether federal courts can impose normative sexual mores upon a local community; rather it's about whether a community has the right to invigilate activities among a minority that are perfectly legal for everyone else. (See what happens if you propose banning fellatio in Texas, by the way). There was no federalist issue in play. It was simply a manifestly clear-cut case of equal protection violation.


At 10:37 PM, Anonymous Anonymous said...

So is it an apt appraisal to say that you disagree with the majority's opinion in Laurence, do not think there is a substantive right to sodomy, and that Bowers still ought to be good law?

At 8:13 AM, Blogger Finnegan said...

Er, no, I agree with the majority in Lawrence and I do think there's a substantive right to sodomy.

Anti-sodomy laws in practice always violate equal protection. And if they could be applied evenly they'd still violate free association and privacy rights.


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