Put aside for the moment the question of whether there should be state laws against sodomy. Dr. Jerry Falwell is surely wrong when he says the Supreme Court “has issued a clear statement that perverted moral behavior is not accepted practice in this country.” Among millions of Americans the culture of buggery is not only accepted but championed. What the Court said is that the text and structure of the Constitution do not establish the practice of sodomy as a “fundamental right.”
The Court said other things that needed saying. In upholding the Georgia sodomy law, it said that in this Republic the people have a fundamental right to make their own laws, within the limits specified by the Constitution. In making such laws, the Court further said, the people may properly be influenced by tradition, custom, and religious belief. When judges try to override this democratic process by imposing their own values, they are themselves acting unconstitutionally. In the words of the majority opinion by Justice Byron White: “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” Divorce Proceedings
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