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Sunday, December 07, 2003
 

HP Scanjet 4670 See-Thru Vertical Scanner

One of the coolest-looking new devices available -- HP's ScanJet 4670


7:42:47 PM    

Polygamist cites ruling on sodomy -- A Utah man with five wives is in court fighting to get his bigamy conviction overturned on the basis of the U.S. Supreme Court's June ruling that decriminalized homosexual relations.

The legal action by polygamist Tom Green in the Utah Supreme Court seems to confirm predictions of a Republican lawmaker and other social conservatives who warned that the high court's decision would open the door to attempts to legalize other sexual activities that historically have been outlawed by states, such as bigamy, polygamy, prostitution, adult incest and even bestiality. (Washington Times)

The use of the floodgates argument is a specious one.  It is true that any new development in the law will result in numerous efforts by litigants to use that new development in other cases and other contexts to support an argument that the result should be re-examined by the court, but that is no reason to criticize the new development.  Indeed, the re-examination of the application of the law in the other contexts will result in a stronger ruling with a more solid basis.   A properly grounded ruling will easily withstand reconsideration. 

Thus, the decision in Lawrence has indeed led to challenges to other laws.  The Utah polygamist wants to challenge the anti-polygamy laws.  A Maryland man prosecuted for engaging in public homosexual acts in a rest stop claims that these acts cannot be prosecuted.  Numerous other such challenges are being made, all based on the premise: If the State of Texas could not constitutionally prosecute John Lawrence, why can the State of [pick the one that applies] prosecute this case? 

A states' attorney, arguing to uphold a prosecution, and the trial judge or panel on appeal, should be able to articulate a significant difference between the private sexual acts involved in Lawrence and acts such as public lewdness or polygamy.  And the fact that significant differences exist and can be identified will help the public to understand just how far the original decision can be taken, assuming that the judge in the later case is sharp enough to be able to formulate an opinion which can describe the distinctions convincingly.

This is how the law develops; it is not a sign of imminent legal or social disaster.  These later arguments do nothing to cast doubt on the wisdom of the original ruling.

UPDATE -- Jim Dedman offers some thoughtful responses.  I would observe that the "floodgates will open" or we will "start down the slippery slope", not when new claims are made, but when they are accepted by courts.  Dedman is less optimistic than I that the Lawrence decision will find some natural bounds.  As he observes, time will tell. 


10:40:23 AM    


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