Privacy amok

The Supreme Court turned the Constitution upside down yesterday. In a 6-3 decision, the majority struck down state sodomy laws across the country — a move that is being celebrated as a huge victory for homosexual rights, which it is. The court used the so-called right to privacy to rule against a Texas law prohibiting sex between people of the same sex. In a brazen example of judicial overreach, the court also ruled against all sodomy laws in all states. This is bad law; the Constitution protects the rights of the states to legislate on these matters.

Justice Clarence Thomas put it succinctly in his dissent. Quoting a 1965 case, he wrote that he could “find (neither in the Bill of Rights nor any other part of the Constitution a) general right of privacy.” In other words, the basis used to rule this case has no basis in the Constitution. The court created this right when it was searching for some way to overturn state laws to create a national right to abortion, which it did through a series of cases culminating in 1973’s Roe vs. Wade. By pre-empting the democratic process 30 years ago, the court caused the current environment of sometimes violent cultural division that is natural when a law is handed down from above without majority support. As if Roe didn’t cause enough hostility in society, the court again has prevented a contentious issue from working itself out through the 50 laboratories of democracy known as states — as if the opinion of communities doesn’t matter.

It is much simpler to stick to what actually is written in the Constitution. In this case, the 10th Amendment will do just fine. It states that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This amendment is a bold defense of democracy, as it leaves the lion’s share of legislative issues to state governments, which are closer to the people than a distant federal capital, let alone an unelected federal court. These states’ rights clearly include statutes covering moral standards held by a majority of its population. As Justice Antonin Scalia explains in his dissenting opinion, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’ — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.” Obviously, the state interest is involved in legislating on such issues on which its citizens have strongly held convictions.

Yesterday’s decision is an example of justices ruling on their opinions rather than on the law. In writing for the majority, Justice Anthony Kennedy clearly advocated what he thought ought to be, regardless of its lack of constitutional validity. We can call this the legacy of Roe. By design, the machinery of democracy works slowly. In the case of overturning society’s traditional mores, it is even more important to work through the support of majorities in states to avoid the cultural split that still exists over abortion. Unfortunately, the Supreme Court has subverted the Constitution and its republican form of government to sneak new mores in through the back door.