Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter

June 27, 2003


Dear Friend,

I know I just sent you an e-letter yesterday, but this can't afford 
to wait until next week. 

There has been a lot of lot of talk since yesterday's Supreme Court 
decision in the case of Lawrence v. Texas, a dispute over Texas' law 
making sodomy illegal. The Supreme Court overturned that law by a 
vote of 6 to 3, saying that such laws "demean the lives of homosexual 
persons" and infringe upon their right to privacy.

Let me tell you right now: Lawrence is a devastating decision, worse 
than most people think -- and for reasons that haven't fully dawned 
on them yet.

I have to admit, the implications of this decision hadn't occurred 
to me yet, either, but after talking to my friend Professor Robert 
George of Princeton this morning, I can say that this is without 
question the most damaging decision handed down by the courts since 
Roe v. Wade -- one that will have even more far-reaching effects than 
its predecessor.

George is a political philosopher and a very smart guy. He pointed 
out a few things about the decision that I hadn't noticed. And 
because this decision is so huge, I wanted to make sure that I passed 
on his concerns to you.

Believe me, this is vitally important.

First, a little background history. As you may already know, Roe v. 
Wade based its decision to make abortion legal upon a woman's right 
to privacy, which the court found in the 14th amendment in the 
Constitution. The problem is, the 14th amendment doesn't give a 
person a right to privacy. What the 14th amendment REALLY guarantees 
is that no state "shall deprive any person of life, liberty, or 
property, without due process of the law." You won't find a right to 
privacy here or in any other part of the Constitution.

The 14th amendment only protects rights by due process, meaning that 
they can't be taken from you except by formal procedures in 
accordance with established law. In other words, you can't be 
executed (deprived of life), jailed (deprived of liberty), or fined 
(deprived of property) without the government going through the 
proper procedure of arresting you, giving you a fair trial, and so 

So what does this have to do with a right to privacy? Absolutely 
nothing. And yet this is what the Roe decision is based on. Legal 
scholars, both conservative and liberal alike, have denounced this 
faulty reasoning that they call "substantive due process." It's 
really a contradiction in terms: Instead of simply guaranteeing that 
you will receive certain treatment by the law, the law has been 
stretched to mean that you will also be guaranteed a certain RESULT.

What began in Roe has now come to fruition in Lawrence: A certain 
privileged class of actions is being protected from legal restriction 
by the Supreme Court. First abortion, now sodomy -- what will be 
next? Euthanasia?

It's up to the people to vote into effect certain laws through their 
legislature. It's the only fair way of guaranteeing that what the 
people want becomes the law of the land, rather than what a few 
justices on the Supreme Court want.

But this, George explained to me, is what happened in Roe v. Wade. 
The justices forced their hand to produce a certain outcome. Since 
then, the Supreme Court has avoided using the tricky (and completely 
false) "substantive due process" rationale in deciding cases.

That is, until now.

The six justices who voted to repeal the sodomy law yesterday did so 
because they said the law produced an unfair outcome -- unfair 
because it discriminates against homosexuals.

But the law was enacted according to the rules of due process -- the 
people supported it, the state legislature wrote it, and the governor 
signed it. There is nothing unfair about the process it underwent in 
becoming law. If people today feel that the law is unfair or 
outdated, they can vote to repeal it just as they voted to enact it, 
and THAT would be a fair process.

But for the COURT to say that the law produced an unfair outcome 
takes this power from the people and puts it in the hands of nine 
Supreme Court justices. This was certainly never the intention of the 
14th amendment.

Nevertheless, that's what the Supreme Court did. And not only that 
-- in his statement for the court, Justice Anthony Kennedy made his 
decision so broad that ANY case that comes before the court in the 
future could appeal to "substantive due process" to dispense with the 
law and get the outcome they want.

And that is what's really scary about this decision. With Roe, the 
decision applied only to abortion rights. But with Lawrence, the door 
has been opened for other kinds of sexual behavior to be exempted 
from restrictive legislation as well.

For example, if a case comes before the Supreme Court arguing in 
favor of incest, according to the Lawrence decision, there's no 
reason why incest should be outlawed. The court no longer has any 
principled basis for upholding laws that prohibit incest, bigamy, 
bestiality, you name it.

So what does this mean for the future? Well, think about this: 
Because Texas' sodomy law has been struck down, all the remaining 
states with sodomy laws will have to dispense with them as well. 

And what about homosexual marriage? The Massachusetts legislature is 
considering that issue right now. If they decide in favor of it, any 
homosexual marriage contracted in Massachusetts has to be 
acknowledged in every other state.

With sodomy laws still in place, this wouldn't have been the case. 
No state is forced to accept contracts from another state that go 
against their own laws and policies. But now that the sodomy laws 
will be removed, no state has a legal defense against homosexual 
marriage. They'll all fall like dominoes. 

The LAST HOPE for defeating homosexual marriage lies in a 
Constitutional amendment that explicitly defines marriage as the 
union of one man and one woman. The Alliance for Marriage, headed up 
by Matt Daniels, is leading the way in calling for the Federal 
Marriage Amendment to do just that. 

If the Supreme Court finds the amendment unconstitutional -- which, 
thanks to Lawrence, they now claim the right to do -- then we're 
sunk. The homosexual agenda will have won the day.

And this is why it's absolutely CRUCIAL that Catholics, 
Evangelicals, and all social conservatives in America band together 
NOW to stop them. There has been infighting among the groups in the 
past -- some think the Federal Marriage Amendment is too strong, 
others think it isn't strong enough -- but we have to put those 
differences aside and make the best we can with what we have.

CRISIS ran an article on just this problem in our July/August issue 
last year, "Can Same-Sex Marriage Be Stopped?", encouraging people to 
take note of the slow change that is already beginning. With Lawrence 
decided, we can't spare another minute. Visit the Alliance's Website,, to find out more about how you can 

I hate to end on such a grim note before the weekend, but I wanted 
to get this out to you as quickly as I could. The sooner we 
understand the danger that marriage in America is in, the sooner we 
can act to save it.

Til next time,


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