Not infrequently Antonin Scalia lights up the Supreme Court with a lightning bolt of common sense. He did it again last week during oral arguments in Lawrence v. Texas.
This is the case that in determining whether homosexual behavior is a "right" may explode the foundation of law.
Famed Harvard lawyer Laurence Tribe wrote the brief submitted in the case by the American Civil Liberties Union. "Americans," he said, "have a fundamental right to be free from government regulation of consensual sexual conduct in the home."
Paul Smith, attorney for petitioners John Lawrence and Tyron Garner -- who were fined $200 in Houston for activities I will not describe here -- restated the proposition in his own brief. "Among the liberties protected by the Constitution," he said, "is the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy with another adult, including one of the same sex."
Some may wonder why this issue is arriving only now in the Court. Didn't we settle this long ago -- like, say, in a Woodstock mud pit? Isn't anything goes sexuality official Baby Boom doctrine?
We certainly don't want police in our bedrooms, do we?
Well, as lawyer Smith discovered, Justice Scalia missed all that rot.
The lightning bolt of Scalia's common sense crashed down on Smith as he was explaining that the problem with the Texas law banning homosexual conduct is that it represents an effort by the majority to impose their morality on the minority.
"But society always . . . makes these moral judgments," said Scalia. "Why is this different from bigamy?"
Indeed, if people have a "fundamental right" to "consensual sexual conduct in the home," why can't a man take two wives? Why not three? Why can't everybody pick the conglomeration of consensual partners that suits their peculiar appetite? As long as it's done "in the home," not in the street, it's a fundamental right. Right?
Wrong, said lawyer Smith.
Right there before God, man and Ruth Ginsburg, the lawyer arguing for "the right of an adult to make choices about whether and in what manner to engage in private consensual sexual intimacy" conceded that some consensual arrangements could be prohibited. "Now, bigamy," he said, "involves protection of an institution that the state creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples' behaviors . . . "
So here is the real proposition before the Court: If a man has sex with a man, he is expressing a right. If he has sex with two women, he is still expressing a right. But if he marries the two women first the state can punish him to protect matrimony.
The current petitioners may believe this. But one suspects their bedfellows in the cause will soon be clamoring for logical consistency. They will give Scalia a straight answer. To his question, "Why is this different from bigamy?" they will answer: It is not. Bigamy, too, is a fundamental right.
Where does it end? Who can tell -- given that a ruling for the petitioners could cause catastrophic collateral damage to the foundation of law itself? All men, said the Founders, "are endowed by their Creator with certain unalienable rights." If all consensual adult sex is one of those rights, either God gave it to us or some force other than God is author of our liberty.
Seventeen years ago, in Bowers v. Hardwick, when Laurence Tribe first argued for this right, Justice Byron White, writing for the Court, said "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road."
Chief Justice Warren Burger scoffed at Tribe's claim. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching."
The power to do just that resides now with five judges.