The Supreme Court has passed another law, this one supplanting the law passed by the people of the state of Texas in its democratic process. But you say the Court doesn't pass laws. Well, as Justice Scalia in his angry dissent said, the Court is supposed to be a court, but it has become a super-legislature overriding the decisions of the people. What a travesty.
By a 6-3 vote, the unelected nine based their decision to make sodomy constitutionally protected on the so-called "right to privacy."
Justice Kennedy, who wrote for the majority, said that the issue was "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." To deny that, he said, would reflect animus. And, he added, times and circumstances do change. Maybe, but the Constitution doesn't.
And what about the 1986 decision that Kennedy and this majority overthrew? In abortion cases, they constantly lectured us, they can't change the law that people have come to rely on.
Well, most Americans seem to be applauding the decision, and I guess there's a libertarian streak in all of us. We don't like the government in our bedrooms.
But if laws are unreasonable, we ought to change the law through our legislatures, not the courts. As George Will wrote, "'Unconstitutional' is not a synonym for 'unjust' or 'unwise.' . . . Legislators can adjust laws to their communities' changing moral sensibilities without creating, as courts do, principles, such as the broadly sweeping privacy right, that sweep away more than communities intend to discard."
Precisely. If the right to privacy protects adults engaged in private, consensual sex, how are we going to outlaw polygamy? The polygamist and all of his wives practice private, consensual sex.
How are we going to maintain laws against incest? It's private, consensual sexual behavior in the security of one's own bedroom. Why stop a forty-year-old man having sex with his consenting nineteen-year-old daughter—or son? And why stop siblings as long as there's consent?
And what about pedophilia that's "consensual," or "intergenerational intimacy," as the North American Man-Boy Love Association calls it?
One even has to raise the question of bestiality. Peter Singer, the eminent bioethicist at Princeton, argues that animals can consent since consent needn't be verbal.
Sen. Rick Santorum was vilified for raising these questions. So was Bill Pryor, the Alabama attorney general nominated for the Circuit Court. Critics say they're making homosexuality and bestiality or incest morally equivalent. Nonsense. They're simply pointing out that that's what the court is doing—making it inevitable, in fact.
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