07-20-2003, 12:39 PM
Strictly speaking, necrophilia is a rather disgusting form of vandalism. It is prosecuted as a property crime against the estate of the deceased. It cannot be prosecuted as a crime against a person because our system explicitely and consistently defines a person as someone who (a) has been born and (B) has not yet died. *
Beastiality can be (and in some cases is) prosecuted as an animal abuse crime when it is prosecuted at all.
Neither act is protected under Lawrence v. Texas. Justice Kennedy set out four basic tests for situations in which a government may step in and regulate a sex act:
1) Someone was forced or coerced into participating without consent. This covers both forceable rape and drug rape.
2) Someone was under the legal age for consenting to sex. This covers statutory rape and molestation. States are still given discretion on what constitutes an appropriate age for consent and under what conditions similarly (though not identically) aged teenagers may engage in sex with each other.
3) An economic transaction takes place. This covers prostitution. The exchange of money turns an otherwise private sex act into an act of commerce, and governments of all levels have the authority to regulate commerce within their jurisdiction.
4) The act takes place in public. This covers sex in parks, beaches, public restrooms, and the street corner. In order to claim a right to privacy, a person first has to take reasonable measures to ensure that they are conducting their business in private. Makes sense, no?
The entire slippery-slope argument (call it the Santorum Slide) is a scare tactic meant to drum up voter support in certain key demographics. In a rational world, we could simply point at the Santorums and laugh. However, this is America, and irrational thinking can buy enough votes to swing an election. We also have such wonderful circus sideshows as Hardball and Crossfire, in which the most unstable and diametrically opposed irrational freaks are goaded into yelling at each other for a half hour. In such an environment, the extremists on both ends flourish and sensible thinking gets lost in the muddle.
My advice for you is to read the actual Supreme Court decisions for yourself. They are surprisingly direct and readable, and they are posted to the Internet for easy and quick access. The actual decisions, including any concurring opinions and dissenting opinions, are a refreshing change to the simple-minded "us versus them" mentality of popular media and infotainment sources.
Some other relevant cases you might be interested in:
Griswold v. Connecticut -- found that the government cannot intervene in a married couple's decision whether "to bear or beget a child" by banning the sale or use of contraceptives. This was the first appearance of a right to privacy in Court literature.
Eisenstadt v. Baird -- extended Griswold to cover the purchase, distribution, or use of contraceptives by unmarried couples.
Roe v. Wade -- found that a state's interest in protecting a developing fetus cannot be exerted during the first trimester of pregnancy; it can sometimes be exerted in the second trimester; and can almost always be exerted in the final trimester. The case is far more nuanced than one might expect from reading or listening to mainstream news sources.
Bowers v. Hardwick -- found that Georgia's law against sodomy was constitutional and valid. This case was directly overturned by Lawrence. One important factor to note: Georgia's law applied to homosexual sodomy and heterosexual sodomy, but was only ever prosecuted against the former.
Casey v. Planned Parenthood of Pennsylvania -- fine-tuned the abortion issue first presented in Roe. The trimester divisions were thrown out, and the magic age of viability (around 20-22 weeks) was re-introduced as the barrier between a woman's interests and the state's interests regarding a developing fetus. Justice Souter goes to great lengths to detail the history of abortion laws in Western culture and how the viability, or quickining, stage was applied in prior centuries.
Roemer v. Evans -- found that Colorado's state constitutional amendment banning local governments from offering standard benefits and protections to homosexuals. Justice Kennedy wrote for the six-vote majority, pierces many of the ultra-right arguments often thrown about as defenses of anti-gay laws.
Lawrence and Garner v. Texas -- explicitely overruled Bowers v. Hardwick and found that the state has no valid justification for regulating the consentual, private, and non-economic sexual acts of its citizens, even if they involve members of the same sex. Justice O'Conner argued separately that Texas's law violated the Equal Protection clause of the Fourteenth Amendment by exclusively criminalizing homosexual sodomy. She would support a law that banned all sodomy, as was the case in Bowers (a decision she supported).
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One interesting point in Kennedy's decision is that, while the Texas law and similar laws are seldom prosecuted, they are often used in more subtle ways to discriminate against homosexuals. A Texas state employee who came out as gay could be summarily fired; he would be considered a presumed criminal and thus denied employment. A gay couple could be denied housing on the grounds that they are presumed sex criminals. Scrapping the law from the books will have far-ranging implications for the lives of homosexuals far beyond the bedroom. However, necrophiliacs will still be subject to prosecution.
Beastiality can be (and in some cases is) prosecuted as an animal abuse crime when it is prosecuted at all.
Neither act is protected under Lawrence v. Texas. Justice Kennedy set out four basic tests for situations in which a government may step in and regulate a sex act:
1) Someone was forced or coerced into participating without consent. This covers both forceable rape and drug rape.
2) Someone was under the legal age for consenting to sex. This covers statutory rape and molestation. States are still given discretion on what constitutes an appropriate age for consent and under what conditions similarly (though not identically) aged teenagers may engage in sex with each other.
3) An economic transaction takes place. This covers prostitution. The exchange of money turns an otherwise private sex act into an act of commerce, and governments of all levels have the authority to regulate commerce within their jurisdiction.
4) The act takes place in public. This covers sex in parks, beaches, public restrooms, and the street corner. In order to claim a right to privacy, a person first has to take reasonable measures to ensure that they are conducting their business in private. Makes sense, no?
The entire slippery-slope argument (call it the Santorum Slide) is a scare tactic meant to drum up voter support in certain key demographics. In a rational world, we could simply point at the Santorums and laugh. However, this is America, and irrational thinking can buy enough votes to swing an election. We also have such wonderful circus sideshows as Hardball and Crossfire, in which the most unstable and diametrically opposed irrational freaks are goaded into yelling at each other for a half hour. In such an environment, the extremists on both ends flourish and sensible thinking gets lost in the muddle.
My advice for you is to read the actual Supreme Court decisions for yourself. They are surprisingly direct and readable, and they are posted to the Internet for easy and quick access. The actual decisions, including any concurring opinions and dissenting opinions, are a refreshing change to the simple-minded "us versus them" mentality of popular media and infotainment sources.
Some other relevant cases you might be interested in:
Griswold v. Connecticut -- found that the government cannot intervene in a married couple's decision whether "to bear or beget a child" by banning the sale or use of contraceptives. This was the first appearance of a right to privacy in Court literature.
Eisenstadt v. Baird -- extended Griswold to cover the purchase, distribution, or use of contraceptives by unmarried couples.
Roe v. Wade -- found that a state's interest in protecting a developing fetus cannot be exerted during the first trimester of pregnancy; it can sometimes be exerted in the second trimester; and can almost always be exerted in the final trimester. The case is far more nuanced than one might expect from reading or listening to mainstream news sources.
Bowers v. Hardwick -- found that Georgia's law against sodomy was constitutional and valid. This case was directly overturned by Lawrence. One important factor to note: Georgia's law applied to homosexual sodomy and heterosexual sodomy, but was only ever prosecuted against the former.
Casey v. Planned Parenthood of Pennsylvania -- fine-tuned the abortion issue first presented in Roe. The trimester divisions were thrown out, and the magic age of viability (around 20-22 weeks) was re-introduced as the barrier between a woman's interests and the state's interests regarding a developing fetus. Justice Souter goes to great lengths to detail the history of abortion laws in Western culture and how the viability, or quickining, stage was applied in prior centuries.
Roemer v. Evans -- found that Colorado's state constitutional amendment banning local governments from offering standard benefits and protections to homosexuals. Justice Kennedy wrote for the six-vote majority, pierces many of the ultra-right arguments often thrown about as defenses of anti-gay laws.
Lawrence and Garner v. Texas -- explicitely overruled Bowers v. Hardwick and found that the state has no valid justification for regulating the consentual, private, and non-economic sexual acts of its citizens, even if they involve members of the same sex. Justice O'Conner argued separately that Texas's law violated the Equal Protection clause of the Fourteenth Amendment by exclusively criminalizing homosexual sodomy. She would support a law that banned all sodomy, as was the case in Bowers (a decision she supported).
-----
One interesting point in Kennedy's decision is that, while the Texas law and similar laws are seldom prosecuted, they are often used in more subtle ways to discriminate against homosexuals. A Texas state employee who came out as gay could be summarily fired; he would be considered a presumed criminal and thus denied employment. A gay couple could be denied housing on the grounds that they are presumed sex criminals. Scrapping the law from the books will have far-ranging implications for the lives of homosexuals far beyond the bedroom. However, necrophiliacs will still be subject to prosecution.