Last summer, the Supreme Court, in Lawrence v. Texas, overturned a Texas statute against sodomy. The majority?s sweeping rhetoric prompted concern that the Court?s opinion would undermine marriage and virtually every other moral standard. Justice Scalia was outraged in his dissent.
Earlier this month, two important decisions concerning homosexuality came down, and surprisingly, the courts found a way around Lawrence. It?s a reminder of the difference that judges who respect the law, instead of trying to write it, can make.
The first case, Limon v. Kansas, involved a challenge to Kansas?s statutory rape law. The law, which prohibits sex between adults and minors, makes an exception in cases where the participants are close in age.
The exception, however, only applies to heterosexual, not homosexual, relations and, thus, was not expected to survive the Lawrencedecision. In fact, the Supreme Court ordered the Kansas appellate court to reconsider Limon in the light of Lawrence.
The Kansas court did and, to the surprise of many, upheld the statute. The Kansas court cited the ?deterioration of the sexual morality? that Kansans believe in, ?the need to reduce the spread of sexually transmitted diseases,? and the non-procreative nature of homosexual sex as valid reasons for treating homosexual sex differently from heterosexual.
And what about Lawrence? The court distinguished Limon from that case by noting that Lawrence was about the right to privacy, and Limon was about equal protection of the laws.
The same distinction figured in the Eleventh Circuit?s decision in Lofton v. Department of Children and Family Services. That case challenged Florida?s ban on gay adoptions. Like Limon, the law wasn?t expected to survive Lawrence, and, like Limon, it confounded expectations. The Eleventh Circuit ruled that Lawrence had not created a ?fundamental right? to ?engage in private sexual conduct.? The court went even further, chastising the Supreme Court for ?issuing a ruling that invoked principles not with ?careful description,? but with sweeping generality.? Good for the Eleventh Circuit.
This is important, because if the Supreme Court had created a ?fundamental right,? that right could only be infringed by a ?compelling? societal interest. Instead, the Court of Appeals was free to defer to Florida?s decision to limit adoption to ?optimal home[s] . . . one in which there is a heterosexual couple or the potential for one.?
These rulings remind us of the importance of judicial appointments. While the much-criticized Lawrence decision opened the door for these rulings, not every judge has been willing to walk through it. Taking their stand requires a commitment to interpreting, not making, the law. That is the role envisioned by the founders.
It also takes courage, not only to criticize the Supreme Court publicly, but also, as the Kansas court did, to cite the increased health risks associated with homosexual activity.
This is likely to be an issue in the fall election, and it?s important. As we saw in Kansas and the Eleventh Circuit, the kind of judges on the bench determine whether they are going to force their values on the people or respect the people?s moral judgments.
For further reading and information:
Joseph Landau, ? Misjudged: What Lawrence Hasn?t Wrought ,? New Republic, 9 February 2004 . (Available to subscribers only.)
BreakPoint Commentary No. 040204, ? A Time for Action: The Federal Marriage Amendment .?
Call 1-877-3-CALLBP to request the complimentary Marriage Amendment information packet, which includes articles on marriage and family by William Bennett and Stanley Kurtz, the Evangelicals and Catholics Together statement on marriage, the text of the Federal Marriage Amendment, and a chart from the Alliance for Marriage outlining the legal impact of the amendment. Also available is the BreakPoint Speak the Truth in Love resource kit ($25), which includes CDs, booklets, articles, and more to help you speak effectively and compassionately on the issue of homosexuality and marriage.
Visit One Hundred Thousand Ministers for information on what pastors can do.
BreakPoint Commentary No. 040130, ? Look Before We Leap: Scandinavia and the End of Marriage .?
BreakPoint Commentary No. 031119, ? Leave It to the Courts: Judicial Power and the Redefinition of Marriage .?
Visit BreakPoint?s Sanctity of Marriage resource page .