Moral Idiocracy
Roans, Spencer
I n 1948, the great conservative thinker Richard Weaver noted with near despair "the appalling problem, when one comes to actual cases, of getting men to distinguish between better and worse." There...
...Some law professors don't like sodomy laws...
...It is a naked diktat, imposing the private views of six members of the Court, scantily dressed up with tendentious history, stunning illogic, and amateur philosophy...
...All fifty states had laws against sodomy prior to 1961...
...In 1986, the Supreme Court held in Bowers v. Hardwick that state sodomy laws were constitutional...
...In the centuries leading up to our colonial period, sodomy was a crime at common law...
...This is constitutional law...
...This is judicial legislation that permanently overrides the will of the people as expressed in state statutes...
...So, would the justices uphold a sodomy statute if it addressed homosexual and heterosexual conduct on an equal footing...
...Paul in the Epistle to the Romans...
...No, it's not...
...The Bowers court, he says, framed the issue as whether "the Constitution confers a fundamental right upon homosexuals to engage in sodomy?' Justice Kennedy's sensibilities are offended by this accurate characterization of the issue...
...In a letter to Edmund Pendleton, he suggested that punishments be proportioned to the crime: "Rape, buggery &c.—punish by castration?' Most states either had sodomy statutes at the time the Fourteenth Amendment was ratified or passed them not long thereafter...
...In the case of Lawrence v. Texas, these six justices unhesitatingly went for the anal sex...
...Legislative statutes have legitimacy because they are passed by elected representatives, and thus express the choices of a self-governing people...
...But six individuals have recently and publicly proved themselves entitled to that description...
...The Bowers court had noted that "proscriptions against [homosexual sodomy] have ancient roots...
...Why should anyone obey this ruling...
...Aren't we the moral idiots for failing to observe—and to act upon the knowledge—that for decades the Court has been ruling by dictatorial decrees, taking fundamental choices about values away from the people and the legislators they elect, and putting those choices permanently beyond debate...
...But, says the justice, not all of these laws were "directed at homosexual conduct as a distinct matter?' as was the Texas law...
...The Court as an institution has been behaving lawlessly for decades...
...The stage is set for new lawsuits to force legal recognition of homosexual relationships, to require the military to accept homosexuals, and to prevent "discrimination" against them in positions such as Scout leaders...
...As Justice Scalia said in dissent, "the Court has taken sides in the culture war?' The barbarians are within the gates, and anything goes...
...Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government...
...The European Court of Human Rights has invalidated laws against homosexual conduct...
...Well—actually, no, they wouldn't...
...In the colonial period and early Republic, the most common punishment for sodomy was death...
...At the end of the majority opinion, Justice Kennedy attempts to reassure us that the Lawrence case does not involve minors, public conduct, prostitution, recognition of homosexual "marriage," persons who might be injured or coerced, or "those who are situated in relationships where consent might not easily be refused...
...After quoting this passage, the Court in Lawrence concludes that "Justice Stevens's analysis should have been controlling in Bowers and should control here:' Think about it...
...Guess whose values will prevail from now on...
...But for that review to be legitimate, it must actually be based on the Constitution...
...Having completed this tour of the Court's worst cases, Justice Kennedy undertakes to re-examine Bowers...
...Instead of constitutional reasoning, the Court surveys what it regards as enlightened opinion...
...Lord Coke in his Institutes defined "buggery" as"carnall knowledge against the ordinance of the Creator and the order of nature, by mankind with mankind, or with brute beast, or by womankind with bruite beast...
...A committee of the British Parliament recommended repeal of such laws, and Parliament itself "enacted the substance of those recommendations" years later...
...It had no way of knowing that six justices of the U.S...
...Responding to a report of a weapons disturbance, Houston police entered an apartment and found John Geddes Lawrence and Tyron Garner in an act of anal sex...
...The core retained by the states is the "police" power—the power to legislate on issues of public health, safety, and morals...
...No, wait—the Court does make one comment on the subject of state legislation...
...The majority opinion—a product of the brain of Reagan appointee Anthony Kennedy—cites the Due Process Clause of the Fourteenth Amendment as the basis for the Court's decision...
...There is ground, wrote Weaver, "for declaring that modern man has become a moral idiot...
...In response to Lawrence, Senate Majority Leader Bill Frist quickly endorsed a constitutional amendment to prohibit homosexual "marriage But amendments require large supermajorities, and we can't hope to amend the Constitution every time the Supreme Court issues a decision that makes a mockery of constitutionalism...
...Yet there is not a word in the Lawrence decision to indicate that the Court gave a moment's thought to the constitutionality—or even wisdom—of arrogating to itself those core powers to legislate on issues deeply connected with moral standards...
...Quite reasonably relying on Bowers, the Texas appellate court affirmed the conviction...
...Justice Kennedy opines that "the State cannot demean [Lawrence's and Garner's] existence or control their destiny by making their private sexual conduct a crime...
...But all substantive laws are ultimately based on moral values...
...Then, backed by a gay-rights group, they appealed...
...There is not the slightest suggestion in the text or history of the Due Process Clause that its framers—or the states that ratified it—had any intention that it wouldsome day invalidate sodomy laws...
...During the Supreme Court term that ended in June, the justices faced a fundamental choice...
...The basic problem there, he opines, is that the members of the Court who decided it were not so morally aware and enlightened as he is...
...Prohibited acts included "any contact between any part of the genitals of one person and the mouth or anus of another person" and "the penetration of the genitals or anus of another person with an object...
...Itk...
...Whether modern man has become a moral idiot we may leave for another day...
...The tenor of the opinion is that the state cannot regulate any private sexual conduct, so long as it is consensual...
...Should they uphold the Constitution, their oath of office, the rule of law, and the principles of republican self-government...
...Under Texas statutes, it was a crime for a person to engage in "deviate sexual intercourse with another individual of the same sex...
...But because he cannot refute the evidence laid out in the briefs of continuous moral and legal condemnations of sodomy, from Biblical times to the present, he simply ignores that evidence...
...That's strictly to soothe the gullible...
...There comes a time when action is necessary or liberty perishes...
...Dissenting in Bowers, Justice Stevens had delivered this chilling statement: "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice...
...Justice Kennedy fails, for example, to mention that the moral prohibitions against homosexual sodomy go back as far as the Book of Leviticus ("Thou shalt not lie with mankind as he lieth with womankind...
...We may now expect a full-scale litigation assault on laws against adultery, bigamy, child molestation, prostitution, pornography, incest, and bestiality...
...That statement?' he fulminates, "discloses the Court's own failure to appreciate the extent of liberty at stake...
...The Founding Fathers delegated only limited powers to the federal government...
...But that is the last we hear of the Constitution, and for good reason...
...The opinion then rambles off into a series of ipse dixits and non sequiturs, ending with the unsupported assertion that "the liberty protected by the Constitution allows homosexual persons the right to make this choice...
...Thomas Jefferson, ever mild, would have eliminated death as a penalty for this offense...
...it is an abomination"), and were echoed by St...
...That long disquisition is just a ruse, simply a way of filling up space and making the opinion look like it contains reasoning...
...Next in the opinion we arrive at the real rationale for the Lawrence decision: "progressive" sentiment is in favor of homosexual rights...
...But why obey a decision that does not even pretend, except in the most perfunctory sense, to be based on the Constitution...
...The decision is distinguished chiefly by its open disdain for the Constitution's text and meaning...
...The right petitioners seek in this case"—the Court decorously declines to name that right—"has been accepted as an integral part of human freedom in many other countries?' Ergo, the Constitution protects the right to engage in homosexual anal intercourse...
...Instead, casting about for authority, the Court embarks on a survey of its most flagrantly activist decisions, including Griswold v. Connecticut—where the Court plucked out of thin air a constitutional "right of privacy"—and Roe v. Wade, a decision so irresponsible that it deeply divides Americans thirty years later...
...The Lawrence opinion will provide powerful ammunition...
...In other words, the Court is intent on striking down all sodomy statutes, whether limited to homosexual conduct or not...
...We just watched another part of it perish with Lawrence...
...Lawrence and Garner pled no contest and were fined $200 each...
...These judges were never elected by anyone, and they are openly defying the choices of the people...
...Their names are Anthony Kennedy, Sandra Day O'Connor, David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens...
...The most important issues addressed by the Constitution, antiquarians will recall, have to do with allocating powers between the federal government and the states...
...When it is, we obey even though we disagree, because we value constitutionalism and the rule of law...
...Supreme Court had an agenda—a very different one—in mind...
...An American Law Institute model code "did not recommend" penalties for private, consensual sexual relations...
...The Supreme Court of the United States has now held that morality is not a sufficient basis for law, at least not if it is morality expressed in a democratically enacted statute, and especially not if it is traditional morality...
...It's time to act...
...Over the dissents of Justices Rehnquist, Scalia, and Thomas, the Court in Lawrence overrules Bowers and purports to find in the Constitution a right to engage in homosexual sodomy...
...Not so, according to Kennedy...
...Or should they instead issue an edict, based on political fashion and their own preferences, to endow the citizens of this Republic with an unalienable right to engage in homosexual anal intercourse...
...The Court's sonorous generalities are so broad that all laws regulating sexual conduct or morals are now up for grabs...
...The facts of the case itself were sketchy...
...Next, Justice Kennedy turns revisionist historian...
...Blackstone's Commentaries referred to "the infamous crime against nature" as "a crime not fit to be named...
...Judicial review of statutes for constitutionality has long been accepted as legitimate...
...He then launches upon a long disquisition to show that some of the bans covered heterosexual sodomy too...
...Later in the opinion, Justice Kennedy expressly declines to base the Court's decision on the Equal Protection Clause, because if the Court did so "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants...
...Article III, Section 2 of the Constitution provides that "the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make Congress, by a simple majority, can take away the jurisdiction of the Supreme Court to decide certain kinds of cases...
Vol. 36 • August 2003 • No. 4
