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| Lawrence v. Texas, the now famous sodomy case, was a huge engagement in America’s culture war. In Lawrence, the U.S. Supreme Court overturned their own 1986 ruling, Bowers v. Hardwick, which upheld Georgia’s anti-sodomy law. A lower court upheld the convictions of Lawrence and Garner based on the 1986 Bower ruling. Overturning Bower allowed the Court to overturn the convictions of the two Texas men on sodomy charges based on their reading of the “due process” clause of the 14th amendment.The decision was based on poor thinking in the first place. An editorial (mislabeled “news”) in Newsweek pointed out that “social norms have transformed over the past two decades.” This is supposed to explain why Bower was properly overturned in the Lawrence case. Unfortunately this does partially explain the Court’s reasoning. Justice Kennedy noted an “emerging awareness” among Americans of how liberty pertains to private matters regarding sex. By imagining an objective reality that we are slowly recognizing, he assumes that privacy and all that may be imagined to be included in the idea vacates a local state’s interest in morality. The majority opinion also imagines that such awareness bears on the content of the Constitution. Modern sensibilities do indirectly affect our laws because we elect lawmakers. They should not be applied to the U.S. Constitution as if to rewrite it without going through the intentionally tedious process of amendment.
A second flawed thought in the decision is that those who commit homosexual acts need special recognition in order to enjoy equal protection under the law. It assumes that homosexuality is a human condition rather than a human behavior. Justice O’Connor’s concurring but separate opinion is based on this assumption. The law mostly refers to types of sexual behavior, not a class of persons who engage in this behavior. Justice O’Connor concurs with the majority decision to overturn the Lawrence conviction but because she considers the Texas law to be unequally applied?specifically, what Texas calls “deviate” sexual behavior is illegal when it occurs between people of the same sex but not between opposite sexes. She sees this as unfair to an identifiable group, homosexuals. Her (and the majority’s) opinion is innovative because it assumes a group that is distinct for reasons other than behavior. The opinion not only takes a side in the culture war, but lays the foundation for an entire agenda by acknowledging the basic contention of homosexual advocates. It affirms as fact something much in doubt and essentially trumps moral and scientific arguments about sexual orientation by creating a constitutional endorsement for some, maybe all, private behavior. Friends, the biggest thing about Lawrence is not its apparent advocacy of “deviate” behavior, although some justices seemed to intend just that. The moral status of sodomy laws among Americans is low and dropping. Enforcement of these laws is infrequent. We may decry these trends but that is not the point right here, it is the broad brushing aside of community standards, ignoring the will of the electorate (expressed in electing legislators), and contempt for the actual content of the U.S. Constitution. Bottom line: the Supreme Court is a crude legislative tool, incapable of subtlety. There is no appropriate way for the Court to express an opinion that sodomy laws are unenforceable or out of date. It is just not their job to do that. When they “discover” a right to privacy that vacates laws written and approved by those elected for that task, they have affected cases yet-unborn. Laws against pedophilia, prostitution, adultery, and other sexual deviations are now on the table regardless of the Court’s intent. And why not? What the law once assumed must now be proven on a case-by-case basis?namely that private sexual behavior affects the participants and the community and the institutions we claim to value. Now we must repeatedly prove that a traditional family is an institution worthy of protection or that minors are actually harmed by even consensual sexual relations with adults. All this because the Court has discounted a state’s interest in sexual morality though intending to single out only certain behavior. They don’t have the tools to selectively allow privacy rights because those rights are neither named nor described in the document they are sworn to interpret rather than re-write. Everyone knows this. Pro-family groups are called paranoid for suggesting that homosexual marriage and other, worse legal innovations will follow from this decision. What about the homosexual advocates who say the same thing? They’re not paranoid so much as jubilant. They see this as a victory upon which they can build a whole structure of social acceptance and special rights. Corporations like Wal-Mart and Belo Broadcasting also get it. They chose, during the week following the Lawrence decision, to adopt corporate policies that both advocates and detractors agree will legitimize homosexual behavior. The next battle will be over same sex marriages. It is important to the two or three percent of Americans who prefer their own sex and it is the logical next step, as noted by Justice Scalia. That foundation has been set in Lawrence. This year, Texas became one of thirty some states to pass a Defense of Marriage Act defining marriage as being between a man |
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