PolySciFi Blog

Sunday, October 23, 2005


What's the matter with Kansas?

Or more accurately, the Kansas Supreme Court (KSC). According to the WaPo (via drudge):
The Kansas Supreme Court on Friday unanimously struck down a state law that punished underage sex more severely if it involved homosexual acts, saying "moral disapproval" of such conduct is not enough to justify the different treatment.
While I would prefer a law that treated sex as sex, it appears to me that the KSC is effectively saying that morals cannot be considered a basis for law. This would represent a serious challenge to my legal philosophy and I dare say Kansans' legal philosophies as well as most of our readership's legal philosophies.

For instance, while I think prostitution should be legal, I recognize that it it is entirely within the power of the state to outlaw it. Staying with the example of prostitution for a moment, I don't see how a state could punish prostitution without invoking a moral basis (barring significant legal gymnastics) as it's effectively punishing consensual sex of one kind (prostitution) but not another kind (consensual sex without money transfer of cash).

Or perhaps an example that the readership has given some thought to, consider laws that outlaw "consenting adults be allowed to challenge each other to a duel and fight a death match." I recognized that morals can be a basis of the state saying outlawing the activity. While I was comfortable with it (as well as pay-per-viewing the match) , I believe that most our readers wanted it outlawed (partly for the ick factor, but that's the reason for a lot of morals), and I thought that such moral reasoning was ok as the basis for a state law.

[I assume the casual reader of this blog must now be thinking, "WTF kind of blog is this? Less familiar with legal arguments over prostitution and more familiar with death matches?" To which I respond, "That's not the half of it, we've got animal porn too!"]

So in pursuit of a desirable result, the KSC kicked out a major pillar of our legal system by denying morality as a basis for state law. You can view this as akin to one of my reasons for opposing Miers - while I thought that she would vote against Roe (a good thing in my eyes), I feared that she would do it for the wrong reasons and cause significant problems.

As Matt points out above, my beef should be with the US Supreme Court, in particular Lawerence v Texas. It was Lawerence that "kicked out a major pillar of our legal system". As written in the KSC decision:
"A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review." 539 U.S. at 585 (O'Connor, concurring).
The KSC follows up that paragraph with this citation of Scalia's dissension:
Justice Scalia wrote a dissenting opinion which Chief Justice Rehnquist and Justice Thomas joined. For our purposes, the dissent is instructive because of its discussion of what the majority opinion does or does not do. Especially significant to our review is Justice Scalia's conclusion that the majority opinion means that "the promotion of majoritarian sexual morality is not even a legitimate state interest" and that criminal legislation on matters such as "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" cannot "survive rational-basis review."
Thus confirming my inference that the Court system (US Supremes but not Kansas which was bound) has decided that morality can no longer be the basis for any law (it's specifically for sex, but it's a readily extended precedent).


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