06/27/2003 Entry: ""
Posted by Maynard @ 10:30 AM MST
Gays, the Courts, and Moral Relativism
The Supremes are on a roll this week. First we had the split on Affirmative Action, and now, Lawrence v. Texas. Gay people are now allowed to have sex in Texas, but the dissents by Scalia and Thomas are much more interesting reading than the ruling. For one, it cites Roe v. Wade numerous times. For another, Scalia's dissent points out the inconsistencies between this and a previous ruling that the majority cited frequently.
The previous ruling was Bowers v. Hardwick. O'Connor summarizes the relevant decision in that case in her concurrence:
"In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government’s interest in promoting morality."
And again from O'Connor's concurrence:
"The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional."
Those of you versed in Orwellian literature will recognize this as doublespeak, and what follows is a convoluted argument to support this statement. She asserts:
"... the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law ... The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct - and only that conduct - subject to criminal sanction."
Her argument boils down to this: since the behavior made illegal by the statute is identified almost exclusively with homosexuals, Texas discriminates against a select portion of the population and therefore denies due process and equal protection to that portion. Q.E.D.
B.U.L.L.
The law defines a certain behavior as illegal. If you do not behave that way, you do not break the law. The fact that only homosexuals engage in homosexual sex is irrelevant. Only child abusers engage in child abuse, so by O'Connor's logic they are discriminated against as well. Her standard sets a dangerous precedent, since it claims that membership in a certain group can excuse criminal behavior.
"This effectively decrees the end of all morals legislation."
Justice Scalia takes a more rational view in his dissent:
"... nowhere does the Court’s opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause ... Instead the Court simply describes petitioners’ conduct as "an exercise of their liberty" - which it undoubtedly is - and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case."
Indeed. His dissent draws analogies between homosexual cases and abortion cases, noting that
What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State.
Scalia pens an excellent dissent, noting the inconsistencies in the opinion of the court and illogical contradictions with previous cases. It is well worth the read, especially if you can understand legalese.
A Brief Opinion
Thomas' dissent is short & sweet. He starts by saying that he thinks the law in question is silly and he would vote to repeal it if it were his place to do so. However, he writes admirably that it is not his duty to do so and therefore will not abuse the power of the judiciary in that way. He finds no right to privacy in the Constitution and therefore finds no justification to side with the majority.
I want this man to be the next Chief Justice because he knows his place in the Court and in history. He's wrong in thinking that the law is silly, but right in choosing to uphold it. Selflessness like that needs to be on the bench.
If I were a Judge
There is a fundamental problem with claiming a privacy right from the 14th Amendment in this case.
Amendment 14, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The problem is that the plaintiffs were denied liberty with due process of law. Not only was the law they were convicted of passed in the normal legislative way but they were convicted in the normal judicial way. Furthermore, the claim that a privacy right exists is specious at best; not only does the word 'privacy' not exist in the Constitution but the word 'private' appears only in the 5th amendment, the relevant clause being almost identical to the 14th amendment clause. Privacy, therefore, is not intended in the Constitution to be a shield against illegal behavior, nor is it intended to restrain the government from criminalizing what it democratically decides is immoral, illicit, or bad. If this were a case of child abuse there would be no argument; yet this is about homosexuality. Where is the line?
Every right comes with a responsibility. If, for the sake of argument, a privacy right exists, that does not excuse you from the responsibility to not harm others when you exercise your right. Homosexuals are constantly charged with harming the fabric of social morals yet they do not refute that charge effectively. When they behave as they do and the legal system of the land gives them permission it becomes more difficult for parents to raise their children in a way consistent with the Bible. To me, leniency by the state towards homosexual behavior constitutes a restraint on the exercise of Christian beliefs, which violates the 1st Amendment. I would side with the dissent.
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