We, the people of the Supreme Court of the United States

Posted: Jul 08, 2003 12:00 AM

Anyone who rises to the Supreme Court knows that justices are not actually supposed to impose their policy preferences. Not even the most assertive judicial activist would proudly claim the title. Instead, he'll cloak his intentions under the dodge of "due process" or "privacy" or "liberty." Law clerks are employed to disguise bald judicial legislation as disinterested jurisprudence.

In Lawrence vs. Texas, the Court's majority actually relied on everything but the actual words of the Constitution, citing even the European Union for the proposition that homosexual unions are not to be criminalized.

Justice Thomas was succinct in dissent. He said he found the Texas law criminalizing homosexual sodomy to be "silly" (the term the Court had used about Connecticut's anti-contraceptive law in Griswold vs. Connecticut). "If I were a member of the Texas legislature, I would vote to repeal it." But his duty, as he and (sadly) only one or two others on the Court understand it, is to "decide cases agreeably to the Constitution and laws of the United States."

Justice Scalia has come in for a good deal of criticism for his scathing dissents. His detractors charge that ridiculing one's adversaries is no way to win friends and influence people. Perhaps. But Scalia is never personal, and his wrath grows out of frustration for a majority that consistently refuses to restrain its overmastering desire to become a legislature -- no, a super-legislature, since Supreme Court decisions on constitutional questions cannot be overridden except by constitutional amendment.

Only 17 years ago, the Supreme Court held in Bowers vs. Hardwick that there was no "fundamental right" to homosexual sodomy and that, accordingly, the state of Georgia was free to criminalize it. One cannot emphasize enough that this was not an endorsement of such laws, merely a statement of the fact that states have great latitude to legislate. Only when a state inhibits the exercise of a "fundamental right" does the Court traditionally consider invalidating a state law.

In the years since Bowers was decided, has homosexual sex suddenly become a fundamental right? The opinion by Justice Kennedy declined to say so explicitly, relying instead on an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Justice O'Connor ruled with the majority in Bowers and has now reversed herself.

If the Court had not placed its big fat foot in this arena, legislatures could have done the necessary weighing and balancing of competing values and interests among the people. It is legislatures, not courts, that are best equipped to accommodate "emerging awarenesses."

Perhaps we don't want homosexuals branded as law-breakers when they engage in private acts at home, but we really don't want to encourage such unions by permitting gay marriage (for what it's worth, that's my personal view). All of this, as Scalia emphasizes, falls within the normal purview of a legislature.

But all of these kinds of distinctions may now be "unconstitutional" because the Court has thrown the mantle of "right to privacy" on all matters relating to adult sexuality. According to the reasoning of Lawrence vs. Texas, laws forbidding adult incest, bigamy, bestiality and many other sexual activities may now be on shaky ground. Justice Kennedy was sentimental about gay sex, asserting that "when 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." This may or may not be the case (certainly some homosexuals engage in "intimate conduct" in the complete absence of a "personal bond," as anyone who's heard of a gay bathhouse knows), but from a legal point of view, it pulls the supports out from under many prohibitions on sexual behavior. Don't mother and son involved in incest have a "personal bond"?

And isn't the state entitled, in some cases, to prohibit certain sexual activity just because most of us find it deplorable? I, for one, would outlaw the viewing of child pornography by anyone, anywhere, including in the privacy of his home. Further, I would outlaw it even if it were entirely computer-generated (that is, no actual children were harmed by its production), because I think the state has a right to enforce minimal standards of decency in its citizenry.

The Supreme Court makes a very poor legislature. Its broad pronouncements of new rights restrict our collective right to create the kind of society we prefer through democratic means.

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