- The Washington Times - Tuesday, July 1, 2003

Thank you, Supreme Court of the United States. Last week the Supremes decided homosexual relations belong behind closed doors — and there’s no reason for the all-seeing, all-knowing state to come peeking and prying around. If the Constitution didn’t require such a result, a sense of propriety would.

The highest court in the land now has agreed with the 19th century English lady who, when asked what she thought of homosexuality, replied that she had no objection “if they don’t do it in the street and frighten the horses.” Which remains a good rule for heterosexual relations as well, while we’re on the subject of the equal protection of the laws.

The court overthrew Texas’ officially sanctioned invasion of privacy for two good reasons:

First there is people’s right to be left alone — which Mr. Justice Brandeis called the first rule of a civilized society.



Second, it seems Texas’ anti-sodomy law applied only to homosexuals. Ain’t that a hoot? It’s such a clear violation of the Equal Protection Clause of the 14th Amendment that Sandra Day O’Connor stood pat on it. She didn’t have to get into the whole penumbra-of-an-emanation-of-a-feeling that is the basis of the constitutional right to privacy. On this singular occasion, Mrs. Justice O’Connor wrote a clear, simple, limited opinion and then — miracle of miracles — stopped. (Gosh, I hope the lady is feeling all right.)

Justice O’Connor’s concurrence stood in stark contrast to Anthony Kennedy’s endless majority opinion, which could have stopped after, “For God’s sake, just leave ‘em alone.” His Wordiness’ majority opinion seemed as long as one of Dr. Kinsey’s studies, and almost as boring.

Now that the Honorables have cleared all that up, could we please just move on? Of course not. Nothing to do with American sexual practices can be left in peace. Antonin Scalia turned in one of his most Scalia-ish performances in this case, mixing legal shorthand with street-corner prophecy, punctilios and pizzazz, sound and fury. His wasn’t a dissent so much as an aria. Instead of discreetly drawing the curtain when he had made his point, the Great Dissenter gave us one of his Fourth of July fireworks shows, going on and on, with each light show outdoing the last.

According to Antonin Scalia, Jerry Falwell, Pat Robertson, et al., the moral sky is falling: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … ” all are now in danger. (Not to mention double-parking and cheating at craps.)

In short: Boo. We’re so scared. All these prophets of doom might do better to take a couple of aspirin and lie down. And try to get a grip. This decision is not the end of Western civilization but one more reflection of Oliver Wendell Holmes’ observation that the law tends to reflect the felt necessities of the times. And in these times most folks just don’t want to hunt down homosexuals any more.

Indeed, if anybody is happier about this decision than homosexuals, it’s probably local police forces, who will no longer have to worry about enforcing these unenforceable laws. That kind of thing leaves you feeling dirty.

We need not make a mockery of marriage, the union of man and woman, an honorable estate established long before the state was, if we choose not to hound homosexuals. There are certain institutions the state should approach with fear and trembling — like the church, the family, and, yes, the littlest of the little platoons that Burke said hold a society together: marriage. And the state knows it.

Government can safeguard marriage and still tolerate people who are different. We can just draw up a standard civil contract that lets homosexual couples regularize their affairs — without confusing their relationship with holy matrimony. Call it a partnership or corporation or civil union, anything but marriage. That way, homosexuals would be protected, and the institution of marriage respected. Each to his own.

Here’s a memory that still shines: Years ago, at the end of a grueling three-week editors’ tour of the old Soviet empire, we reached Moscow and the American Embassy. It looked great after hearing nothing but nonstop slogans in a police state. (No wonder vodka sales were a pillar of the Soviet economy.) The first work of art we spotted on entering the U.S. Embassy was a sign from an old New England inn. It was the perfect choice for an American embassy in a totalitarian society. All it said on its weathered wooden surface was: “Live and Let Live.” And we knew we were on American soil.

Paul Greenberg is a nationally syndicated columnist.

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