When United States troops fought and died in the Civil War, they were likely unaware that their mission was to forbid the States from outlawing sodomy any longer. The framers of the Fourteenth Amendment, in their desire to codify the Civil War’s aims, likely lacked this awareness as well. But wherever those men are now, they must be proud that over a century later the Supreme Court unearthed their true intentions and declared that sodomy enjoyed the Fourteenth Amendment’s protection. They can rest in peace knowing that their efforts were not in vain.
Of course I’m being humorous, for the Supreme Court made no attempt to honor those men’s intentions when suddenly discovering in 2003 in Lawrence v. Texas that States could no longer outlaw sodomy. In all honesty, the Court’s decision should come as no surprise at this point, for it is well-established that the Court has long since jettisoned finding justification for its rulings in the language and history of the Constitution. Instead, the Court has fallen into the habit of looking at societal trends and its own sense of “fairness” to reach its conclusions, thereby functioning as the super-legislature it has appointed itself as. Lawrence even adds the twist of looking to modern foreign law in order to ascertain what our domestic Constitution truly means, so the Court has fulfilled its legislative function with a zest often lacking in the stolid deliberations of mere congressmen and senators. And better still, we again have Sandra Day O’Connor, along with her equally-timorous cohort Anthony Kennedy, to thank for it.
Similar to the abortion debacle, sodomy was an issue that the Court visited twice in as many decades. Back in 1986 the Court held narrowly, but correctly, in the aptly-named Bowers v. Hardwick that absolutely nothing in the Constitution or our nation’s history indicates that States lack the discretion to criminalize such behavior. When the issue resurfaced in 2003, the Court had no compunction about reversing itself, despite having refused to reverse itself on abortion for the ostensible reason of preserving the Court’s legitimacy. Taking the Court at its word, we must deduce that Lawrence’s reversal of Bowers undermined the Court’s legitimacy a great deal.
Justice Kennedy’s lead opinion set the parameters of the “analysis” in a predictably lopsided manner that telegraphed the ultimate result: “The issue is whether the majority may use the power of the State to enforce these [moral and ethical] views on the whole society through operation of the criminal law.” The most patent flaw in this statement is that the “whole society” is not at the mercy of one State’s decision. Quite the contrary – the whole society is at the mercy of the Court’s decision, which should produce some degree of restraint. A more fundamental error implied by Kennedy’s formulation is that a State should justify its policies, which is exactly the reverse of the constitutional paradigm – States presumptively possess the power to do as they please in the absence of a specific constitutional prohibition. Kennedy, not the States, bears the burden of proof, and it is a burden that he utterly fails to carry.
No matter, because Kennedy sets his own burden of proof. According to him, only recent history post-dating the Fourteenth Amendment need be consulted: “In all events we think that our laws and traditions in the past half century are of most relevance here.” Not only may Kennedy ignore the temporal setting of the Fourteenth Amendment, he may also ignore its geographical setting and look to recent European trends to support what is surely his pre-determined outcome: “Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and today’s case. . . . The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights.” In view of this stellar reasoning, we must presume that Kennedy is prepared to strike down the death penalty as well, since Europeans loathe it so passionately.* In a final flourish of fecklessness, Kennedy points to the increasing number of States that have exercised their discretion to de-criminalize sodomy, which somehow is meant to prove that States lack discretion to decide the issue at all.
Sandra Day O’Connor makes her hypocritical presence felt by also voting to strike down the law and repudiate Bowers, even though she is the one who insisted on upholding Roe merely because the Court should stick to its guns. In a supposed exercise of judicial sobriety, Justice O’Connor shops around for a different pretext for her desired outcome and plucks the “equal protection clause” off the shelf. Even though this still does nothing to conform her decision to the Fourteenth Amendment’s purpose, she soothes her conscience by charging that the law in question targets only homosexual sodomy rather than sodomy in general, and that it therefore violates principles of equal protection. Under this rationale she would have voted to uphold the law if it had banned both homosexual and heterosexual sodomy, but I wouldn’t bet on it.
Justice Scalia skewers these clowns rather deftly in his dissent, singling out O'Connor for her blatant hypocrisy of upholding precedent in Casey but treating it like toilet paper in Lawrence. He nevertheless suffers from the major defect in the Court’s modern reasoning: he treats the artificial doctrine of “substantive due process” as valid. What sets Scalia apart is that he attempts to tether this open-ended doctrine to “fundamental liberty interests” that are “deeply rooted in this Nation’s history and tradition.” Since sodomy lacks roots in American history, he argues, “substantive due process” has no role to play here. Yet Scalia should know that it’s impossible to let this genie halfway out of the bottle – once the Court reserves the right to strike down laws on something so amorphous and non-textual as “substantive due process,” qualms about restraint amount to whistling in the wind. As for O’Connor’s self-indulgent ramblings on “equal protection,” Scalia rightly observes that her objection could be leveled at state laws that do not recognize homosexual marriage, and incredibly enough, that is precisely what is happening today.
In a prescient closing, Scalia writes the following:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). . . .
At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” . . . Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” . . .
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Scalia was deadly accurate, for we are now through the looking glass and must confront a decision by a federal district court and affirmed by the Ninth Circuit Court of Appeals holding that the Constitution requires States to acknowledge homosexual unions. In other words, the same Constitution that left States free to outlaw homosexual conduct now compels them to embrace it and elevate it to the historical status of marriage between a man and a woman -- with no corresponding amendment whatsoever. This insanity has gotten out of hand and no longer even really concerns homosexual conduct. I personally agree that government should not interfere in private sexual conduct among consenting adults, but what we are dealing with here is a blatant assault on the rule of law and the right of communities to define their own mores. There is no "ban" on homosexual unions anywhere in the country, rather a refusal by most communities to acknowledge them. To decree that communities must acknowledge them -- while desecrating the Constitution in the process -- is a form of tyranny far worse than anti-sodomy laws ever were. If anything, it is forced sodomy on a societal scale.
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* I authored this sentence in June of 2004, partially in jest. In March of 2005, though, it indeed came to pass that Justice Kennedy took a swipe at the death penalty in Roper v. Simmons, 543 U.S. 551 (2005). Kennedy again elevated foreign law over our domestic Constitution to decree that States must follow global trends and cease executing persons who committed their crimes when they were younger than eighteen years old, no matter how convincing the evidence of criminal pre-meditation.
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