Daily Archives: 26 June 2014

June 26, 2003 (a Thursday)

Scales of Justice

On this date, the U.S. Supreme Court decided the case of Lawrence v Texas (539 US 558). This landmark ruling (6 to 3) struck down a Texas law that prohibited sodomy (that is, anal sex) between same sex couples. The Court had previously addressed the same issue in 1986 in Bowers v Hardwick (478 US 186), where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

The case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered two men engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits “deviate sexual intercourse.” They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.

Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. He said that this right is protected under the word “liberty” in the due process clause of the Fourteenth Amendment, and is not trivial. Kennedy wrote:

The Court began its substantive discussion in Bowers as follows: ‘The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.’ That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…

When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Justice Kennedy expressly analogized to Supreme Court precedents protecting the right to purchase and use contraceptives and the right to abortion as aspects of privacy. The Court concluded that:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Justice O’Connor, who had voted with the majority in Bowers, concurred in the judgment in Lawrence but said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples. In some ways, O’Connor’s opinion was broader than the majority’s, for as Antonin Scalia noted in dissent, it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational-basis test as long as it was designed to preserve traditional marriage, and was not simply based on the state’s dislike of homosexual persons.

However, O’Connor does not explain how a law limiting marriage to heterosexual couples could be designed to “preserve” (whatever that means) traditional marriage WITHOUT being motivated by the state’s dislike of homosexual persons. Furthermore, if a state provides nearly all the benefits of marriage to same-sex couples but calls it “civil union” or “domestic partnership”, its duplicity and prejudice become even more obvious by refusing to allow them to marry.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said, with his characteristic hyperbole and hysteria, that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Scalia’s dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes. He also averred that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices.

However, Scalia’s assertion is NOT true — proscribing adult incest can be justified on medical grounds, since children produced by such activity are more likely to suffer genetic disorders, and proscribing bestiality can be justified on grounds of animal cruelty. Also, it logically follows from Scalia’s reasoning that states should be able to make the moral judgment that interracial marriage is wrong and embody that judgment in criminal statutes – except that the Supreme Court has previously ruled those laws unconstitutional as well.

With Lawrence, Scalia concluded, the Court “has largely signed on to the so-called homosexual agenda.” While Scalia said that he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” Scalia argued that the Court has an obligation to decide cases neutrally. 

Of course, Scalia’s use of the term “agenda”, implying that the action against Texas is part of a wider, covert effort to legalize the activities he mentions above, debases homosexual persons, and his protestation that he has nothing against them only confirms his bias, or at least makes his self-professed neutrality suspect.

June 26, 1987 (a Friday)

From Article 5 of the U.N. Universal Declaration of Human Rights

On this date, the United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into effect. Since 1998, each anniversary has been observed as International Day in Support of Victims of Torture. On this day, we pay deep respect and tribute to all those around the world who have suffered and endured the worst torture.

The Convention obliges States to make torture a crime and to prosecute and punish those guilty of it. It notes explicitly that neither higher orders nor exceptional circumstances can justify torture.

As of June 1998, the Convention had been ratified by 105 States. These States parties are required to report to the UN Committee against Torture, a human rights treaty body set up in 1987 to monitor compliance with the Convention and to assist States parties in implementing its provisions. The Committee is composed of 10 independent experts who serve in their personal capacity and are elected by States parties.

These 105 States parties to the Convention against Torture are: Afghanistan, Albania, Algeria, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Belarus, Belize, Benin, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Chad, Chile, China, Colombia, Costa Rica, Cote d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Ecuador, Egypt, El Salvador, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Guatemala, Guinea, Guyana, Honduras, Hungary, Iceland, Israel, Italy, Jordan, Kenya, Kuwait, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Malawi, Malta, Mauritius, Mexico, Monaco, Morocco, Namibia, Nepal, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Saudi Arabia, Senegal, Seychelles, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Sweden, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, Togo, Tunisia, Turkey, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Uzbekistan, Venezuela, Yemen, and Yugoslavia.

Notice that China is a signatory to the Convention against Torture. Sixty years have passed since China invaded Tibet in 1949. From then until 1979, a total of  1.2 million Tibetans were brutally killed and more than six thousand monasteries razed to rubble according to a report by the Central Tibetan Administration. The situation over the years hasn’t changed as the Chinese government continues to subject Tibetan people to various forms of physical and mental tortures depriving them of human dignity and freedom, which all people are entitled to, irrespective of caste, color, creed and religion, by virtue of being a part of the same global family, that is, humanity.

The 2008 peaceful protests in Tibet against the Chinese government’s cruel policy resulted in hundreds of deaths, thousands of imprisonments, involuntary disappearances, and severe injuries to hundreds of Tibetans. The year 2010 saw immense political suppression on influential Tibetans after the post-2008 peaceful protests across the Tibetan region.

Freedom House published a special report dated 1 June 2011 entitled Worst of the Worst: The Worlds Most Repressive Societies that provided data on the countries that received the lowest combined ratings for political rights and civil liberties from the highly respected human rights organization. Hundreds of thousands of human beings in these countries languish every day in prisons or labor camps — generally in subhuman conditions and subject to physical or mental abuse — purely for their political or religious beliefs. In particular, the report is designed to direct the attention of the UN Human Rights Council to states and territories that deserve investigation and condemnation for their widespread violations. The report identified the territory of Tibet as one of the ten “Worst of the Worst” political entities in terms of human rights abuses.

The brutal clamping down on influential Tibetans by the Chinese government is a futile attempt to diminish or end the public influence on Tibetan civic and intellectual leaders, writers, and artists. Despite the recent incidents of harsh crackdown on Tibetans in Amdo Ngaba and Kardze by Chinese authorities, Tibetan people continue to carry out peaceful protests to demand freedom. Tibetans’ spirit for freedom and justice has never been bogged by tortures, brutalities, intimidation, or coercion.

Question:  In light of its persistent and pervasive violation of human rights, why does the United States government continue to give the People’s Republic of China “most favored nation” (MFN) trade status?