From: bgl6000@zeus.tamu.edu (Brett G. Lemoine)
Subject: Re: A question
News-Software: VAX/VMS VNEWS 1.41    
Organization: Texas A&M University - Chemistry Department
Date: Thu, 27 Aug 1992 17:45:00 GMT

In article <BtnAA6.4E@news.cso.uiuc.edu>, g-skinner@uiuc.edu writes...
}We agree that sodomy laws are pointless.  We disagree as to what
}is the justification for removing them.
} 
}lemoine@chemvx.tamu.edu (Brett G. Lemoine) writes:
} 
}>In article <1992Aug26.175441.2206@csrd.uiuc.edu>, g-skinner@uiuc.edu writes...
}[On the subject of homosexual marriage and the state]
} 
}>}There may be rational justification for the favoritism.  For instance,
}>}the state may have an interest in producing children for one reason or
}>}another (e.g. to have more 18-year-olds to serve in the armed forces).
}>}Promoting opposite-sex marriages may encourage childbirth.  This is a
}>}rational justification, though I disagree with it.  Rather than argue
}>}that the government should sanction same-sex marriages, I question why
}>}the government sanctions any marriages at all.
} 
}>I would add that the state (IMO) doesn't have the right to use legislation
}>to encourage or discourage childbirth for it's own interests.
} 
}Though I'm no constitutional scholar, I think the state does reserve
}for itself influencing power of this sort (though we both disagree
}with this in principle).  Witness the tax deduction for dependents,
}which serves only to ease the financial burden of those raising
}children.
} 
}I take it we agree now that there can be rational justification for
}the favoritism/discrimination.  Of course, both of us will no doubt
}disagree with whatever justification is given, but we can acknowledge
}that the other side is at least rational in their thinking.  (If we
}can't do this much, we shall never get through to them.)

Correct, I concur.

}> There would
}>be immediate public outcry if the government legislated a maximum number
}>of children each family may have.
} 
}Quite true.  That is why such policies usually take the form of
}incentives, etc.
} 
}> (BTW, I don't think anyone is arguing that the
}>reason for the discrimination is based on the government wanting more
}>children to tax.)
} 
}Agreed.  The thought never even entered my mind.
} 
}>}>}>Many states _still_ have antiquated laws on the books outlawing
}>}>}>'sodomy' (often including oral and manual as well as anal sex).
}>}>}>If you can give me _NON-religious_ reasons for this discrimination,
}>}>}>I will drop my claim that the government is abusing the seperation
}>}>}>of church and state by these practices. 
}>}>} 
}>}>}The reason may be societal.  Simply put, past U.S. society in general
}>}>}had sexual taboos that included these things.  Parts of that society
}>}>}evidently also thought their taboos should have the force of law.
}>}>}(Was there a religious reason for this?  I am not aware of any.)
}>}>}Looking back, it seems it would have been nice if there had been a
}>}>}"separation of sexuality and state" amendment to the Constitution.
}>} 
}>}>That would have been nice. In the mean time, since there _is_ a seperation
}>}>of church and state, and the current policy is a holdover from Christian
}>}>laws, the law should be changed to prevent this blatent discrimination.
}>} 
}>}The burden of proof would be on those who suggest that the laws must
}>}be religious in origin.  As I know of no Christian law which
}>}explicitly prohibits oral or anal sex, I think a case can be made for
}>}the law arising from society.
} 
}>I doubt seriously that you could come up with a good reason for keeping
}>(making) oral sex illegal.
} 
}Nor would I have any interest in trying.
} 
}> While the bible may not specifically say
}>"thou wilst not stick thy husband's member in thy mouth, nor thy toungue
}>in thy wife's birth organ," Religion, and christianity in particular has
}>long been an advocate of legislated morality, espically of a sexual nature.
} 
}It is quite debatable as to whether religion influenced society or
}society influenced religion in these matters.  I don't think anything
}could be proven either way to the extent required by the legal system.
} 
}You're correct to say that some sects of Christianity advocate
}legislating morality.  I think the problem is the attempt to legislate
}morality, not that religion involved.  If we use the first amendment
}to guard against legislating morality, what is to be our defense
}against attempts by nonreligious groups to do the same?
} 
}>}(That is not to say I think the sodomy laws shouldn't be repealed; I
}>}just disagree with the reasons given for repealing them.  I think they
}>}should be repealed because they are pointless, intrusive and
}>				     ^^^^^^^^^
}>Therein lies the thrust of my argument. Any law with no 'point' other than
}>to enforce religous convictions is unconstitutional.
} 
}The problem here is proving conclusively that the law has no point
}other than to enforce religious convictions.  Remember; this would
}have to be proven to a constitutional court.  If this is to be the
}crux of our case, we shall have to prove to the court that the laws
}are completely religious, with no basis in society.  This is an
}extremely heavy burden of proof to lay on ourselves.  I think we have
}a better attack in saying that these rules serve no other purpose than
}to legislate morality.  By bringing religion into our case, we weaken
}it, for morality can be derived from sources other than religion.  It
}brings up a bunch of questions:

I disagree as to who has the burden of proof. To prove that there is no
reason other than religious, we'd have to show that an infinate number
of secular reasons are invalid. Where if there are non-religous reasons
for a law, those supporting it would only need demonstrate one. The
first is an impossible task, the latter should be an easy one.

}--Who gets to decide what is a religion and what isn't?
} 
}--Once we've defined religion, how do we distinguish between a
}religious person advocating a law for religious reasons and advocating
}a law on purely ethical grounds?

To be honest, I see little difference between ethics and religious tenets.
IMHO, legislation should have a pragmatic basis; society is free to encourage
or discourage actions based on religion or ethics, government should not.

}--How do we decide the law being advocated by the religious person is
}based solely on his religious code, and nothing else?

Ask them to provide a single reason not based on religion.

}--What if the persons who put the law in place are all dead and we
}can't historically verify their motives?
} 
}I hope we have a large legal staff.

Indeed.

}The trouble with this approach is that we have to examine the motives
}of all persons who wrote or advocated the law.  We should be able to
}examine the constitutionality of a law by looking only at the text of
}the law.  I repeat: we should be able to examine the constitutionality
}of a law by looking only at the text of the law.

Why?

}The situation is analogous to the recent Supreme Court decision on
}Hate Crime laws.  The trouble with the laws was they made the state
}the judge of the motives of the perpetrator of the crime.  In every
}case there were already laws in place to deter the action; Hate Crime
}laws served only to stiffen the penalties (and make the case more
}difficult for the legal system).  Our situation is similar: if the
}laws are pointless, then we already have means of getting rid of them.
}Adding the first amendment to our case forces the state to judge the
}motives of the lawmakers.  This unnecessarily mires our case in
}unprovables.
}-- 
}Gregg Skinner    g-skinner@uiuc.edu         I speak for no organization.

Which is why the burden should go to those who support any given law. IMO,
government should have the minimum possible number of laws. Any law to be
passed, as well as those on the books, should have a pragmatic basis. If
they do, it should be a simple matter for the supporters to show this.

}-IvArch->--------------------------Brett G. Lemoine-------------------->
}-Texas A&M University--------------Chemistry Department Programmer----->
}-Internet: lemoine@chemvx.tamu.edu or bgl6000@zeus.tamu.edu------------>
}------"A person without a god is like a fish without a skateboard."---->
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