In declaring state laws against sodomy unconstitutional, the
black-robed members of the United States Supreme Court ended up
looking more like priests than judges. Rather than simply striking
down the Texas statute for violating the Equal Protection clause by
outlawing only homosexual sodomy rather than all sodomy, the Court
majority chose to make like Moses and come off the mountain with a
big commandment: Thou shalt not pass a law that infringes on sexual
liberty. The last time the Court did its Moses routine in a way
everyone noticed was Roe v. Wade. That stone tablet
(carved purely by human hands rather than by celestial lightning)
has yielded bitter fruit, namely, tens of millions more abortions
than expected and an atmosphere of constant cultural civil war.
“Now, just wait a minute,” some reasonable person is saying to
himself. “All the court did was strike down sodomy laws that aren’t
enforced and nobody cares about anyway.” Generally speaking, that’s
true. Very few Americans are in favor of roving sexual morality
patrols who shine spotlights in bedroom windows. Routine law
enforcement won’t be much affected by the court’s decision. There
simply aren’t that many of us obsessed with maintaining the health
of human orifices against the rising tide of America’s increasingly
broad sexual appetites.
Aside from the fact that the Lawrence decision doesn’t
ruffle the public’s feathers much in its immediate implications,
it’s simply true that the Court has once again created the
equivalent of a Constitutional amendment out of thin air. As with
abortion, we are left to ask, if this right of sexual liberty is
found in our Constitution, where has it been during the 200 plus
years of the Republic’s existence?
The question of government inspectors grading sex practices as
they would cuts of beef is a red herring fit primarily for
discussion by middle rung talk show hosts and their mentally
challenged callers. A more urgent line of inquiry is whether we are
really expected to forfeit our place in the democratic process to
yet another bizarre collection of Roe-like “penumbras” and
“emanations” that somehow guarantee sexual freedom more than they
do the First Amendment’s free exercise of religion. If we’re of a
mood to accept shadows and lights cast by various constitutional
phrases, I say we discover the aura of financial liberty shining
from the sacred letters of the Contract Clause and get the
government out of our bank accounts.
Although Lawrence v. Texas arises from a sodomy case,
the court’s unnecessarily broad ruling has led many to speculate
about the future of gay matrimony. Some conservatives have
prematurely declared the death of marriage, fearing the venerable
arrangement has been killed by lawyers bent on loosely constructing
the Constitution. They are wrong about that. Marriage wasn’t
created by the government and has been around longer than any
calendar. All the world-changers and utopians of the last few
centuries haven’t been able to do the institution serious damage
through their redefinitions. The advent of modern birth control
methods and mass media probably hurt marriage more than any
government policy ever did.
There’s no question the gay rights movement has presented a
serious challenge to traditional conceptions of sex and marriage.
It has. But its challenge is not for the court to answer. The issue
confronts our most deeply held values and customs. Such questions
of moral right and wrong are generally not addressed by our
Constitution, which is really a governing document telling two
governments (state and federal) their responsibilities with regard
to citizens more than it is a Holy Writ of Truth and Justice. When
it comes to discerning capital letter TRUTH and THE GOOD, legal
training is not necessarily an advantage. Neither is the hubris and
attachment to power a lifetime appointment to a Supreme Court seat
appears to bring. As citizens we are qualified to find answers
through the democratic process and make them part of our law. This
central fact was ignored by the court in Roe v. Wade and
has led to an unnecessarily acrid division between Americans for
decades. Today’s court is now on the edge of making the same
mistake.
Democracy will not give us an answer as quickly as nine justices
will, but that should satisfy a nation of small “d” democrats. If
we believe otherwise, we should abandon the concepts of federalism
and consent of the governed, rechristen the Supreme Court as the
Council of the Wise, and cease looking exclusively to lawyers to
fill the seats. In the meantime, perhaps the justices should be
relieved of their robes in favor of less striking attire. The fancy
ceremonial duds seem to be causing delusions of grandeur.
