Emanations and Penumbras — The slippery slope argument starts to show merit

by Sal on May 2, 2007

in Culture,Europe,Judicial Watch,Politics

When the Supreme Court ruled in Lawrence v. Texas that states could no longer punish sodomy (based on the so-called “right to privacy” written in the “emanations and penumbras” of the Constitution), many said that this would lead to a slippery slope to legalize bigamy, incest, prostitution, etc., can all be said to be a right based on the decision of Lawrence (although the court has not yet specifically stated it).  Many who pointed out the slippery slope at the time were labeled as homophobes for this view.  Now, it seems, people are challenging these other laws on the basis of Lawrence’s statement that private sexual conduct cannot be regulated.  There is a pending court case attempting to legalize adult incest on the basis of Lawrence.  The case involves an Ohio man convicted for having sex with his 22-year old stepdaughter.  He lost in the court of appeals, and will probably lose in the Supreme Court (but who knows with the likes of Kennedy, Stevens, Breyer, Ginsburg, and Souter), but how long before a movement builds to legalize adult incest and keeps pushing the court?  Under the theory of “emanations and penumbras”, the court can find anything, change its mind, ignore two hundred years of precedence and suddenly find a new right written in the “emanations and penumbras”!  Lawrence itself was completely at odds with an earlier decision from 1986, Bowers v. Hardwick.  Stare Decisis, a principle which the left claims to cherish when it comes to Roe v. Wade, was completely ignored when it came to Bowers.  The trend lines are clear, and they show a move to legalize all forms of sexual deviancy.  It may not happen this year with this case, but unless current trends are reversed, it is inevitable. 

On a side note, Justice Scalia’s dissent from Lawrence is one of his classic dissents, and is worth a read.  It can be found here

{ 2 comments… read them below or add one }

Mike May 2, 2007 at 12:17 pm

Kennedy will do the right thing. Although he is never ashamed to do the unpopular, incest is too unpopular for him to find a right to same in the Constitution. That’s not exactly sound legal reasoning I know, but it is Kennedy’s reasoning.


Ryan May 2, 2007 at 3:16 pm

He was a big bud with O’Connor whose judicial reasoning was only slightly more predictive than my horoscope in today’s paper. One never knows what to expect from these folks, but sure enough, Souter will definitely find a right to incest if Ruth “Biddy” tells him to.


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