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by Jordan Lorence
You may believe that the Minnesota law criminalizing sodomy is archaic, silly, unenforceable and should be repealed. But there is something worse than the sodomy statute: judges striking down laws enacted by the people's representatives when the courts base their decisions on no written text of the state Constitution or clear intent of the framers. Judicial activism, even when some think it is for a good purpose, eventually turns into judicial tyranny. The Minnesota Civil Liberties Union brought the lawsuit challenging the sodomy law although no official has enforced the law against any of the plaintiffs. (For the past century, Minnesota prosecutors have only brought charges based on the sodomy laws in cases involving juveniles, prostitution or sodomy in public places). On May 15, a state trial court judge in Hennepin County declared the law unconstitutional based on no written part of the Minnesota Constitution, but a new provision conjured up by the Minnesota Supreme Court - a "right of privacy." Of course, judges should strike down laws that violate the state Constitution. But judges should not be able to do so based on unwritten and newly-discovered parts of the Constitution. The "right of privacy" was never proposed by the framers or the state legislature, so there is no written record of the intent of its drafters. The "right of privacy" was never approved by the people in which voters could evaluate the debate and campaigns for and against such a provision. We have a "right of privacy" that the Minnesota Supreme Court first discerned in 1987. They further determine what it means on a case-by-case, ad hoc basis. Somehow the Supreme Court determined that this wordless "right of privacy" does not protect consensual commercial sex, like prostitution. But how did the justices know? This enterprise seems too much like ancient soothsayers determining the future by examining the entrails of sheep. Although some Minnesotans may support a right to privacy, this is not the way to add it to the state Constitution. Furthering this murky endeavor, the Minnesota Supreme Court in the early 1990's discerned that this unwritten "right of privacy" compelled the Legislature and unwilling taxpayers to fund abortions for poor women, even though the Legislature had decided not to do so since 1978. Again, no one can read the text of this right or investigate the intent of its framers to determine whether the high court is correct. Then, last May, the trial court judge discerned that the unwritten right of privacy also protected private consensual sodomy. Although the state constitution explicitly protects people from unwarranted police intrusion into their homes and other private areas, it contains no general right of privacy. This case is not intended to protect people from real situations involving rogue cops, but is a case brought by liberal activists to get a court to strike down a law they don't like and the Legislature refuses to repeal. This case wrongly confuses a constitutional question with a public policy question. The Legislature answers the public policy question - whether the state should criminalize sodomy or not. People lobby, legislators debate, and a decision is made. In contrast, the courts answer only the narrow constitutional question - whether the Legislature has the power to criminalize sodomy. And the answer is clearly yes. Whatever your view is on the public policy question, whether Minnesota should criminalize sodomy or not, there should be no question that the framers of the Minnesota Constitution never intended to take away from the Legislature the power to criminalize sodomy. While Minnesota was a territory, it had a criminal sodomy law. After Minnesota became a state in 1858, the Legislature immediately reenacted the sodomy law, and has kept it on the books ever since. The Minnesota Supreme Court has repeatedly upheld criminal convictions of people violating the sodomy law on many occasion since statehood. Additionally, the framers of the Minnesota Constitution wrote into the text that the right of conscience should never be construed by courts to protect acts of "licentiousness." The framers of the Minnesota Constitution would have understood "licentiousness" to include sodomy. Therefore, it is basically impossible to argue that the intent of the framers of the Minnesota Constitution was to protect sodomy and remove the state legislature's power to criminalize it. Therefore, the court decision striking down the law is not really a legal decision, but a court misusing judicial authority to repeal a law the Legislature refuses to do. This decision shows judicial activism because the court takes an unwritten part of the constitution and essentially rules, "because I think the sodomy law is a bad public policy decision by the legislature, this court will declare the law unconstitutional, based on a vague provision that doesn't even appear in the Minnesota Constitution." The Attorney General should have been defending the constitutionality of the state law and vigorously urging the trial court to steer off the path of judicial activism that the MCLU was urging it to take. Instead, the Attorney General submitted a four page brief with no legal arguments, but only pointing out that some states have upheld their criminal sodomy laws against state constitutional challenges, and others have struck them down, with the final comment that the court decide which is correct here. If the Attorney General could not defend the constitutionality of the statute, he should have exercised the authority he had to pick someone else to defend it. Those Minnesotans who believe that the sodomy law should be repealed can lobby their legislators to do so. Courts should stay out of this matter because if a court can strike down this law based on an unwritten constitutional provision, it can strike down any law. We have much more to fear from judicial activism than enforcement of the sodomy law, because judicial activism has an ominous tendency of turning into judicial tyranny. Jordan Lorence is general counsel for the Northstar Legal Center, an affiliate of the Minnesota Family Council. |
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Minnesota Family Council / Minnesota Family Institute 2855 Anthony Lane South, Minneapolis MN, 55418-3265 Phone 612.789.8811, FAX 612.789.8858, www.mfc.org |