jvthc

Ok, I made the title provocative to get your attention, but it may be a future headline with more truth than humor, if what I’ve read recently has it right.

In a recent msnbc website op-ed piece, an analysis of the Lawrence V Texas case that struck down the Texas anti-sodomy law suggests that the ruling may provide an interesting challenge to prohibition of all types. I’m no attorney, and the delicate details are somewhat beyond me, but my reading of Justice Kennedy’s opinion, and the various briefs and analysis of that opinion, have me smiling for the cause of legalization. This was, after all, the case that prompted Pat Robertson to pray for God to lay his hand “heavily” upon those three liberal judges. Fortunately, Robertson is only important to the “choir” and God is more likely to lay his hand heavily upon Robertson, whose prayer is an old man’s version of a child asking God to make the teacher sick.

However, as to Lawrence V Texas, according to the analysis, and if the heated dissent of Scalia is any indication of it’s weight, the REASON behind the decision may end up being more important than the decision itself. This case is recent, so much remains to be seen about how it will truly affect our future.

The condensed reduction of the analysis (which I admit means you’re hearing from me the 5th or 6th hand of its interpretation) is astonishing. The comments I heard prior to this point regarded the ruling as a protection of privacy. The case was, after all, about cops busting in on two gay guys goin’ at it. The cops charged the two with a violation of the anti-sodomy law, which judge Thomas called “uncommonly silly” – though he did DISSENT from the court’s opinion that it be struck invalid. Even members of congress opined about how this could mean that privacy has been protected to an extreme; lamenting just what types of illegal conduct might be protected simply because it was conducted in private.

However, the ruling has been lauded as revolutionary because it DID NOT discuss privacy, or any right related to privacy, as the reason for striking the law.

The reason was liberty!

According to the analysis I read, the significant point was that it was NOT limited to a “fundamental liberty” either. It was NOT based on some constitutional guarantee listed in the Bill of Rights, or some related, implied right read into the language. Instead, Kennedy adopts the “presumption of liberty” (as in the famous phrase following the presumption of “inalienable rights”). The conduct under prohibition, sodomy in this case, is the prohibition of a liberty. Upon finding that the justification for the prohibition is inadequate, largely because no one ELSE’s liberty has been denied by the act, nor any other rights denied, nor any INJURY is caused to anyone else, Kennedy deems the law unconstitutional.

IF, and it’s a large but not a huge if, the future courts follow this line of reasoning (and they’ll need good reason to avoid it), even Scalia notes this could have damning consequences for every law prohibiting acts based on moral traditions. Every law prohibiting prostitution, gambling and other “hot moral issues” are now in question. Essentially, the court has said that a prohibition based entirely on moral grounds is not sufficient for a criminal punishment. The burden has now SHIFTED to the GOVERNMENT to demonstrate that a violation of such laws represent some kind of injury or danger, where the prevention of some evil is not simply on a moral ground, as in the case of an anti-sodomy law, but for the REAL protection of the public, not some imagined ill to moral fabric.

While I think this has stronger implications for challenges to laws prohibiting gay marriage, gambling and other acts, there is room for optimism about challenges against the prohibition of marijuana consumption, and therefore possession. A test of the law on these grounds will, therefore, be required. It will only succeed if the court follows this same line of reasoning, and there is no successful argument that a genuine injury has occurred. While politicians and bureaucrats have easily turned a blind eye toward scientific facts about marijuana’s relatively little danger, the court is not so easily motivated. If a case does appear, and genuine effort exerted to demonstrate the facts as WE know them, the opposition, in an attempt to press opposing facts from science, cannot possibly persuade the court that marijuana represents any greater danger than alcohol or other legal substances, and according the line of reasoning given in Lawrence V Texas, the court should therefore strike down all prohibition against it’s consumption.

This could be the American version of Canada’s medical marijuana challenge, where the courts become the voice of sanity, checking the authority of the legislature, exactly the way the founders of our nation intended.

It’s quite interesting to add, too, that in the amicus brief I read, a significant point was made I had only heard before from J.S. Mill. There it was reasoned, in line with Kennedy’s opinion, that if the courts were not to limit the legislature’s ability to deny liberty (which up to now the court HAS ALLOWED, explicitly), then the states would have unlimited power to deny liberty to the citizens, which is by definition a tyranny. Only by limiting the extent to which liberty is denied can tyranny be avoided, even in a democracy, and to that extent our system ought to be constructed under the presumption of liberty first, forcing the burden of justifying ALL limitations of liberty upon the government. That, essentially, is the potential weight and power of the Lawrence V Texas decision. It should have been the standard all along, but it wasn't. This standard may now have been created.

It will be hilarious if the restoration of sanity in our laws, the defense against democratically imposed tyrannical limitation of liberty, and the end of marijuana prohibition were started by two gay guys in Texas having a little personal liberty.

__________________
Imagination is more important than knowledge - Sounds like BS, until you realize Einstein said that.

Mamabudz

So to summate the deciding factor was the Inalienable right to LIBERTY.

Previous decisions in these cases have been baaased on the issue of Privacy -- expectation of privacy, assumption of provacy, extension of provacy to one's bodya nd the acts one does to one's own body.

Very cool...

Another nail to build the sign we'll wave on the courthouse steps as we light that great vicotry doobie and read written in neon green paint: "With Liberty & Justice for All"

richpull10

For court cases in the future regarding marijuana growing or personal use of marijuana, a smart defense attorney could remind the court of a previous case. (Lawrence V. Texas) and remind the court of the precedental decision from that Judge.
Could you imagine if Mark Geragos had to defend some Hollywood Schmuck for smokin in the street like Bobby Brown or that other dude whose always in the news for doing drugs and goin to prison. Well, he would totally own those clowns and stick that decision to 'em, go Mark Geragos!!

zoltron

I think that hole thing is totally ass-inine!!

AndieBear

I like your version much better than they way I understood it. I thought the law was struck down because it was basically impossible to enforce, and even should a case arise, such as Lawrence V. Texas, it had been unenforced in the recent past and therefore nulled. Am I right? Could that possibly be a factor? Or would that be one for a jury, instead of the courts to decide?

Either way, I like your closing statement, jvthc. hehe

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Ten people who speak, make more noise than ten thousand who are silent.

jvthc

Hey AndieBear:

It's true that the law was essentially unenforceable, because police can't just barge into a private home, let alone the bedroom, without some kind of purpose. Just how would someone call in a complaint about violating that particularl kind of law?

In the Lawrence case, a phony call had been placed (I think on weapons allegations). Whatever the original purpose, there were no infractions, save for the position the two defendants were found to have assumed.

Just the same, the learned analyses I've read do mention that there is no authority for the court to repeal a law on grounds that it's unenforceable. That's in the domain of legislature, or at the discretion of police (who can't otherwise concoct a scenario permitting the busting down of front doors without reason).

I'm still learning, myself - an eternal student and tourist of such things - so I can't speak with authority. I'm relegated to delivering a book report, as it were. I don't see enough interest in this, yet, but I think the California challenges against the Feds may use Lawrence V Texas to strengthen their case. I'll keep tuned in for certain.

AndieBear

though the points I've made would be enough for a jury nullification of the law, unless the law is used for rape cases wich I do see that happening.

If an old law on the books isn't used in a court for an extensive period of time, then is used as in this case, maliciously, a jury would have the right to enter an innocent verdict. Enough of these cases, and the law would be nulled as prosecuters will learn that to try a case such as this is a waste of time and money as their citizens will not allow it. (Hence, the importance of a jury trial.)

Either way, it is definetly a positive step, and a possible aide in the legalization movement. Keep us posted.

Stephanie S.

jvthc, first I'd like to thank you for your well thought out commentary and analysis. This has been a pleasure to read!

This jumped out at me:
The fact that no one's liberty is at risk by people partaking of marijuana is an issue I've pondered for years. How can the government hold a law against a plant that in essence doesn't hurt anyone nor deny anyone's liberty(freedom).

Well, we all know that Prohibition goes much much deeper than basic law. It's not just an issue of law, they've made it a demon drug, classifying it with narcotics. As long as marijuana is Scheduled the way it is it will carry a stigma that the general, non-smoking public will never be able to look past.

I think that if the scheduling of marijuana could be changed then something like this could easily come into play and have quite a dramatic effect on Prohibition Laws.

The government has covered marijuana from one end of the spectrum to the other. If they don't get you for simple possession, then its intent to distribute, tax evasion, etc.

Our liberty is being denied, no doubt. This indeed could be one of the stepping stones we need.


peace

__________________
"See, in my line of work you got to keep repeating things over and over and over again for the truth to sink in, to kind of catapult the propaganda." —George W. Bush, Greece, N.Y., May 24, 2005 (Listen to audio)

OverwhelmSam

And the wheels turn, one click at a time.

jvthc

I thought I add this minor update:

I'll keep the names withheld for the moment, since I don't have permission to say just of whom I speak, but I forwarded these thoughts to the defendants in one of the now famous cases of medical marijuana raids in California.

I got a reply. I saved the reply for my own collection, since the name is one I recognize from several national news stories. Simply put, their defense team is using this decision as part of their strategy. I have no idea just how central it is to their theme; I'm sure that good attorneys would pull all resources available.

The upshot is that the Lawrence V Texas will be part of a defense of medical marijuana in the coming months, and since that case was decided after the raids were conducted, there is new material on which to base hope and optimism.

To me, it will be more exciting than the superbowl (no pun intended - well, sortof).