Is It The End Of The
Published on 7/2/2003
Has the end of the world arrived because the Supreme Court ruled
no state may prohibit private, consensual homosexual conduct? No,
the end of the world is being handled by the Supreme Judge. But the
end of the Constitution has arrived, and that is something about
which everyone in this temporal world should be concerned.
Writing for the majority that struck down the Texas anti-sodomy
law, Justice Anthony Kennedy takes us on a journey with no fixed
origin, no map, but a certain destination. His constitutional
rewriting will lead to same-sex “marriage” and a Constitution that
means to liberal judges what the Bible means to liberal theologians
— a document to be tailored to the whims of culture, not the
reverse. This, from justices named by Ronald Reagan (Sandra Day
O'Connor and Kennedy) and George H.W. Bush (David Souter).
Beginning with the manufactured “right to privacy” created out of
nothing by the godlike court in Griswold vs. Connecticut, Kennedy
leads us through Roe vs. Wade (which many correctly predicted would
follow Griswold) to the present Lawrence vs. Texas. He asserts that
religious beliefs, history, tradition and even the desires of the
majority to set parameters for the moral climate in which they wish
to live are irrelevant. “Our obligation is to define the liberty of
all, not to mandate our own moral code,” said Kennedy. That can lead
Kennedy dismisses thousands of years of law, history and
theology, choosing to rely solely on modern times: “In all events we
think that our laws and traditions in the past half century are of
most relevance here.” Kennedy deletes the wisdom of the ages,
preferring to download the squishy morality of post-modernism.
Sen. Rick Santorum (R-Pa.) predicted two months ago that if the
court struck down anti-sodomy laws, challenges would follow to laws
prohibiting bestiality, polygamy and all sorts of sexual practices.
We will see him proved right (see Justice Scalia's remarks below).
Prostitutes, call your lawyers.
Kennedy said anti-sodomy laws “do more than prohibit a particular
sexual act. Their penalties and purposes, have more far-reaching
consequences, touching upon the most private human conduct, sexual
behavior, and in the most private of places, the home.”
Supreme Court decisions like this one have far-reaching
consequences. Griswold led to Roe, which led to partial birth
abortion. This ruling will lead to same-sex “marriage,” because the
court has removed from the people their right to create community
standards for themselves. This will force schools to teach
homosexuality as normal and not just an “alternate lifestyle.” The
trend in that direction was well advanced before this ruling.
It fell to Justice Antonin Scalia to say what needed to be said.
While chiding the court for reversing itself in a Georgia sodomy
case (Bowers vs. Hardwick) 17 years ago, Scalia took the majority's
arguments and turned them back. He noted if the logic for reversal
was applied to Roe, then Roe would fall.
He said the majority believe a case should be overturned if “(1)
its foundations have been ‘eroded' by subsequent decisions, (2) it
has been subject to ‘substantial and continuing criticism', and (3)
it has not induced ‘individual or societal reliance' that counsels
against overturning. The problem is that Roe itself, which today's
majority surely has no disposition to overrule, satisfies these
conditions to at least the same degree as Bowers.”
Then Scalia gets to the heart of it: “Countless judicial
decisions and legislative enactments have relied on the ancient
proposition that a governing majority's belief that certain sexual
behavior is ‘immoral and unacceptable' constitutes a rational basis
No wonder Kennedy wants to ignore history and appeals only to the
last 50 years for his constitutionally twisted and morally specious
rationale. Scalia declared the end to “all morals legislation. If
the court asserts the promotion of majoritarian sexual morality is
not even a legitimate state interest, none of the above-mentioned
laws (prohibiting fornication, bigamy, adultery, adult incest,
bestiality and obscenity) can survive rational basis-review.”
This ruling and similar court usurpations of lawmaking power from
the people's representatives will, and should, be a major theme in
the coming election campaign. We know where the Democratic
presidential candidates stand, as well as most Democratic members of
Congress. Where do Republicans stand, and will President Bush make
this an issue, as he should?
Cal Thomas is a columnist for Tribune Media Services.
Leave e-mail at http://www.calthomas.com/.