5/17/2008 Is Sexual Freedom is a Constitutional Right?
Is gay marriage ?

Canadian (similar to most of world) Rights vs. U.S. Rights in our Constitutions

Are adult in private sexual and gay rights supported in the Constitution and confirmed in the Declaration of Independence (right to life, liberty and the pursuit of happiness)?

Constructionist judges like Bush/McCain supports have the legal philosophy of judicial interpretation that limits or restricts judicial interpretation. It requires a judge to apply the text as it was ratified in 1787 and no further. The Constitution does not explicitly say we have sexual freedoms nor that gays can marry. Therefore there is no such right says the Bush/McCain/Conservative types.

The California Supreme Court says under their similar State Constitution there is a gay right to marriage under the due process clause (similar to that in the U.S. Constitution). Since this upsets conservatives, many want a Constitutional Amendment to specifically deny marriage rights to gays/lesbians. In their twisted minds somehow this hurts heterosexual marriage - I have never understood how.

A majority of the pre-Bush Supreme Court ruled in Lawrence vs. Texas that we do have sexual freedoms, laws can not be based on morality and private consenting adult sexuality (at least anal sex in this specific case) is a Constitutional right, even though it is not specifically addressed in the Constitution.

To me this is a huge political issue of individual freedoms implied in the Constitution vs. specifically stated. In general Republicans or "conservatives" such as Bush/McCain want to be sure we have no such rights since they are not specifically mentioned in the Constitution.

Other countries (my favorite example Canada) have more individual freedoms or their similar Constitutions are widely accepted as covering them. The Canadian Charter of Rights and Freedoms (their bill of rights entrenched in the Constitution of Canada) doesn't talk about prostitution or gay issues. But it has been interrupted that private consenting outcall adult prostitution is a legitimate individual right in Canada as it is in most other countries. The gay marriage issue is still being debated as to whether it is a right or not.

Fundamental justice (in section 7 of the Canadian Charter) is interpreted to include more legal protections than due process, which is its US equivalent. Freedom of expression in section 2 also has a more wide-ranging scope than the First Amendment to the United States Constitution's freedom of speech.

In general, Canadian courts have embraced a purposive interpretation of Charter rights. This means they have concentrated not on the traditional, limited understanding of what each right meant when the Charter was adopted in 1982, but rather on changing the scope of rights as appropriate to fit their broader purpose. This is tied to the generous interpretation of rights, as the purpose of the Charter provisions is assumed to be to increase rights and freedoms of people in a variety of circumstances, at the expense of the government powers.

In the U.S. most Republicans/Bush/McCain types attack this as bad judicial activism - our Constitution should only be based on the specific rights granted in 1787 and not be applied to more modern broader issues.

Further Discussion
I posted this on the Woodhullfoundation discussion board where I've been active and it generated some good discussion such as from Ricci Levi, , Executive Director, The Woodhull Freedom Foundation:

Please feel free to repost and share my response with those to whom you think this discussion would be of interest. If you do so, please either cut out Dave's comments (below mine) or obtain his permission to share his post (I give permission).

This mission of Woodhull is to affirm sexual freedom as a fundamental human right.

When affirming Sexual Freedom as a Fundamental Human Right the following points control:
1. When the Supreme Court says something is a fundamental human right it is. It matters not what the opinion is of those who disagree. Until the Court is persuaded to change its opinion its word is the final one on the question. When the current Supreme Court rules, as all expect it will, that the 2nd amendment protects a fundamental right of an individual to own guns that will be the final word unless and until the court (whoever appoints it) changes that opinion. With regard to sexual freedom as a fundamental human right Lawrence rules until reversed. In the United States Sexual Freedom is a fundamental Human Right.

2. Some of the points made by the court’s six to three Lawrence opinion underscore the scope of the case. Here are some of them—
“ These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11—12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

3. Next we should be clear about the actual realties that are at the heart of our constitutional system. It is true that Some Republicans or "conservatives" such as Bush/McCain deny the existence of such rights since they are not specifically mentioned in the Constitution. But this argument misstates the nature of our constitutional system. The failure for a right to be mentioned in the Constitution has no bearing on whether it exists or not and the constitution itself is explicit on this point.

It is a mistake to give into the kind of ignorance that attempts to limit human rights to those enumerated in the constitution. Saying, for example, that there are individual freedoms implied in the Constitution vs. rights specifically stated is misleading. The constitution is explicit about all rights. Here is how the structure of the American Constitutional system works.

When the British Colonies in American declared themselves to be the Independent United States of America they said “We hold these truths to be self evident that all men are created equal and they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness—”

The rights are self evident, they are inalienable and that three of the many rights that exist (among the total number that is larger than three) are life, liberty and pursuit of happiness. The fact that individuals have more rights than those enumerated in the Constitution is made explicit in the last two articles of The Bill Of Rights.

These amendments codify the intrinsic nature of human rights—rights that accrue to individuals by virtue of their creation/birth. These amendment say:::
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
The point is that it is a self evident truth that all people are created with certain inalienable rights, that three of these rights are life, liberty and the pursuit of happiness, and that equally clearly other fundamental human rights exist within the system being described. The ninth and tenth amendment of the Constitution make blatantly explicit the point assumed in the Declaration of Independence. The Lawrence opinion, derived from Griswold (1965), Loving (1968), Roe v Wade (1973) and overturning Bowers (1986) makes explicit that sexual freedom is a fundamental human right.

Our culture is making explicit the intrinsic reality that sexual freedom is a fundamental human right. As the court says, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If the state rather than the individual controls sexual freedom it controls the fundamental attributes of personhood. It is this argument that we must continuously repeat—adult individuals, not the state, have the right and the responsibility to make all decision about sexuality. We must repeat continuously what the court has said. Allowing the state to intervene in the area of sexuality threatens society itself.

Highlights of other comments:
... as much as I am in sympathy with your idea and agree with your constructions about common law, I think that the term "Judicial Activism" has been so defined by the ignorant right in a bad way that it would take a long time to resurrect it. Like the Death Tax, a construction that goes back to he Roman Empire, it has been used to distract people from the very activist agenda that these so called constructivist judges are espousing. I am tempted to suggest that we call the judges that we want in the courts, Living Judges, as in the Living Constitution and calling the conservative judges, Dead Judges, as in the dead Constitution that doesn't change with the culture, but that seems a bit esoteric for sound bite politics.

I like the idea of citing the Constitution as a living document. And your approach is similar to countering "abstinence-only" with "real sex ed".

Perhaps a better dyad of terms would be "judicial independence" versus "judicial partisanship", with the Right-wing "constructionists" in fact being partisans who have surrendered their independence to an ideological mandate.
We need to be mindful of the fact, and remind our opponents, that under the common law system which we inherited from England, judges can indeed create new law.

Prior to 1154, England did not have a unified legal or judicial system; county courts ruled according to local custom. Henry II made two reforms to this system: (a) he brought judges together to compare notes and determine what constitutes crimes and punishments "common" to the country, and (b) he reinstated trial by jury as a way of drawing on community knowledge in rendering legal decisions.

Constitutional law, legislative statute and equity would make the legal and judicial system of England (later Britain) more complex, but the principle of precedent -- that judicial decisions must be consistent with prior decisions -- was still maintained. This was not only inherited in the newly created United States, but actually written into the constitutions of several states such as New York.

(The only exception to this is Louisiana, which inherited its civil law code from the time of French rule. However, common law decisions esp regarding Federal case law have influenced the evolution of Louisiana law.)

When those who complain about "activist" judges declare that courts should not be making law, they are ignoring eight and a half centuries of legal history. Our common law system of precedent has indeed allowed for judges to make new law, within prescribed boundaries. If not, then the very freedom of expression and dissent which these very same Right-wingers enjoy would not in fact exist.
--- Dave in Phoenix <dave@davephx.com> wrote:
> Constructionist judges like Bush/McCain supports
> have the legal philosophy of judicial interpretation
> that limits or restricts judicial interpretation. It
> requires a judge to apply the text as it was
> ratified in 1787 and no further. The Constitution
> does not explicitly say we have sexual freedoms nor
> that gays can marry. Therefore there is no such
> right says the Bush/McCain/Conservative types.

Where these judges are missing the point is that they don't understand the originalist reasons that the courts were created in the first place, as then modified by Chief Justice Marshall in the early 19th Cent. and later by the post Civil War Amendments. This is stuff I learned in High School, so the fact that people like Justice Scalia don't understand it shows that what the are really about is putting the US back into the moral straighjacket of the Victorian and post-Victorian world.

The courts exist to protect the inalienable rights of minorities, not to protect and affirm the rights of majorities, which have the legislative branch for that. Until we get back to this idea, that there are inalienable rights, not just rights written into the constitution or legislated into law, then we are going to be having these fights with those who want to put us back in the closet, or worse.
Rick Umbaugh
Dave notes:
Victoria Woodhull was the out-spoken, “racy” activist who introduced sex-positivist values to America during the Victorian era. She believed that both men and women had a right to “free love" without government or public intervention. Throughout the 1870s, she lectured and published, arguing against society’s sexual double standard. Woodhull advocated sexual satisfaction and love for all, legal prostitution, the right to multiple partners, and supported people’s abilities to make their own decisions about consensual sexual activities.

"To those who denounce me, I reply: Yes I am a free lover. I have an inalienable, constitutional and natural right to love whom I may, to love as long or as short a period as I can; to change that love every day if I please." - Victoria Woodhull

They have a great website, discussions of the Texas law, and a FREE 84 page manual that can be downloaded: "Advocacy for Sexual Freedom: A Practical Guide to Creating and Leading Issue Advocacy Campaigns"

Judy Guerin, Co-Director I have met in Phoenix a few years ago when she was with another Free Speech coalition group trying to help the Phoenix swing clubs. She resigned shortly after however to help found the Woodhull Freedom Foundation.

Their great website: http://www.woodhullfoundation.org

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