There are of course other wars and one of them, on Wednesday, was being waged before the Supreme Court. The question before the house: Did the Court rule improperly in 1986 in Bowers v. Hardwick, which upheld the right of a state (Georgia, in that case) to declare as criminal, homosexual conduct between consenting adults.
The pending case is similar to Bowers
in almost every respect: Two men in Houston, Texas, were arrested for engaging in such activity. A suspicion floats across the mind: Might this thing have been set up? Police do not poke around looking for homosexuals having at it, any more than they bust into establish that you are smoking a marijuana cigarette. It sounds a bit like the case a few years ago of the elderly bicyclist who came upon a freshly scrubbed corner near the local municipal building and saw there — sodomy? Genocide? Regicide? No, what he saw was a granite monolith on which the Ten Commandments had been chiseled. This affront on the separation of church/state narrowly cost him death through a heart attack, but he recovered; and who should materialize to forward his case? The American Civil Liberties Union, of course, which has since then succeeded in banning the Ten Commandments, along with mangers and Christmas trees, from public property.
In the Texas case, the conviction was appealed and carried upstairs by the Lambda Defense and Education Fund, whose agenda is to abrogate all legislation banning, or frowning upon, homosexual contact. Justice Breyer, in one exchange with the attorney representing Texas’s Harris County, made the case that states that have laws simply as expressions of moral disapproval impose grave consequences. “Bowers has proved to be harmful to thousands and thousands and thousands of people . . . not because they’re [necessarily] going to be prosecuted, [but] because they fear it.”
Such anti-homosexual-practice laws are “a possible instrument of repression in the hands of the prosecutors.”
Justice Antonin Scalia wanted the petitioner to tell him why the state should not be permitted to express in legislation its moral code. The attorney handled this by saying that straight men and women routinely “commit adultery, fornication and sodomy.” To permit statutes that single out gays for prosecution for engaging in similar activity is to deny equal protection under the law.
Now disagreement with Justice Scalia is, for a few of us, unconstitutional, profane, and antinomian. But he does have difficulties in this case. He acknowledged that anti-sodomy laws have been widely repealed, that only four states are left with such laws as brought this case to the Court’s attention; but he asked the petitioner why this should matter? “Suppose that all the states had laws against flagpole-sitting at one time” and subsequently repealed them. “Does that make flagpole-sitting a fundamental right?”
This was a move to discourage comprehensive action by the Court that would amount to elevating homosexual activity into a primary right, which is what happened when the right of abortion was decocted from something or other. The realization of yet another fundamental right, one more giraffe armed with guarantees of due process, Justice Scalia is clearly bent on opposing.
The Texas law says that gays cannot do what non-gays can do, and the facts of the matter weigh against Texas. Even if the prosecution was brought on by agents provocateurs furtively setting out to add one more right to the Bill of Rights, it’s hard to defend what the Texans did. The only way to do it, of course, is to say that what Texas did/does is not the Supreme Court’s business. But this will prove hard, because in the Bowers case in 1986, the Court acknowledged that it was the Court’s business, and now it will need to ask again whether due process, or equal protection, is involved. Justice Scalia will say it is not, and his opinion will be interesting, as his opinions are always interesting. It would be nice if Texas simply repealed the law, and let Lambda’s clients go back to their practices undisturbed.