From: skinner@symcom.math.uiuc.edu (Gregg Skinner)
Subject: Re: A question
Reply-To: g-skinner@uiuc.edu
Organization: University of Illinois at Urbana
Date: Thu, 27 Aug 1992 13:46:53 GMT

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.)

> 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:

--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?

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

--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.

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.

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.
Newsgroups: alt.atheism