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.
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