The Supreme Court divides America

Bill Murchison
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Posted: Jul 10, 2003 12:00 AM

What the Supreme Court dumped in our laps, via the Texas sodomy-law decision, was one awful mess. Messes demand to be cleaned up. The means of sorting through, far less vacuuming up, this present one is not evident.

Here is the problem:

The court tried out an essentially political solution on a moral and theological problem. That is one of the various things homosexuality is -- a moral and theological problem, or question, if that sounds nicer. Not that theology never gets tangled up with politics. It happens all the time. The anguish arises when a purely political body -- in this case, the high court -- tries to resolve a moral question beyond its competence.

That is precisely what the court, in Lawrence vs. Texas, sought to achieve (though of course without admitting it).

The court was delighted to overturn the law in dispute, having discovered -- according to Justice Anthony Kennedy -- that "emerging awareness" proves homosexuality no longer deserves stigma.

Whatever the Supreme Court may think, this view of homosexuality is not what our society ever has embraced. When Thomas Aquinas and Sigmund Freud line up (more or less) on an issue -- this one -- you suspect something deep-seated is going on. Also something ancient. Texas' prohibition of sodomy was the palest reflection of a community viewpoint long and heavily established. Statutory law in this case followed public conviction.

Well, here we are, with law leading, or attempting to lead, conviction -- in this case, a belief Americans are ill prepared to share (gays and lesbians amounting only to 2 percent to 3 percent of the population). Certainly, Americans are less ill prepared than was the case, say, 20 years ago. The male kiss at the Tony Awards, "Will & Grace" -- these circumstances are not, as the lawyers say, dispositive, but they show us that evolution is afoot. Big companies, which never seek trouble they can avoid, have adopted non-discrimination policies regarding gays. .

All that is so. But Newsweek puts its thumb on the nub of the issue here -- gay marriage. Is it coming? The court disclaims any intention of meddling, noting that "other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." ("Mere"? The moral law reduced to one consideration among many?)

On the other hand, when you open Pandora's box, you never know what will fly out. The right of states to define marriage as the union of one man and one woman is immediately in dispute under the terms of Lawrence vs. Texas; that is, if the Supreme Court can call it unconstitutional to prosecute homosexual sodomy, why can't the court call it unconstitutional to deny members of the same sex the right of marriage?

Here, the matter gets truly sticky. Hardly anybody these days wants to punish sodomy through criminal proceedings. Marriage -- the basic building block of society -- is another matter entirely. Few Americans, if polls are right, want to redefine marriage on the say-so of the U.S. Supreme Court -- the "mere" say-so, if I may say so -- and of the gay rights lobby.

Until Lawrence vs. Texas, such matters were within the people's purview to decide -- as when Vermont's legislature authorized same-sex unions and Texas' legislature forbade them.

In rushes the court at this point, creating that which the social peace hates -- uncertainty, fear and distrust. A Newtonian reaction is under way already, with Republican Senate leader Bill Frist, for one example, endorsing a constitutional amendment that would define marriage as the union of man and woman.

We are about to start fighting bitterly over this regrettable but worthy amendment -- a measure we might have forgone had not the Supreme Court decided, in effect, to overrule several thousand years of moral testimony and understanding.

What a mess, indeed! We are likely as a people to end up hating and despising each other in ways we cannot now imagine. At the very thought of it, the blood freezes, the pit of the stomach tightens.