Monday, June 30, 2003

In an opinion smacking more of Zen Buddhism than constitutional law, the Supreme Court sermonized last week in Lawrence vs. Texas (June 26, 2003) that homosexual sodomy prohibitions violate the due process clause of the 14th Amendment. Writing for the majority, Justice Anthony Kennedy, an appointee of President Ronald Reagan, rhapsodized about “attributes of personhood” and liberty “in both its spatial and more transcendent dimensions.” He tacitly scolded our constitutional architects for a cramped vision of “the components of liberty in its manifold possibilities [like homosexual sodomy]. … ” The role of the Constitution in the associate justice’s opinion was as trivial as are extras in the cinematic extravaganzas of Cecil B. DeMille. But when judging and social engineering are conflated, as the two were in Lawrence, the rule of law is tarnished and the invigorating self-governing toils of repealing ill-founded statutes are frustrated.

Justice Kennedy’s exordium celebrates the grandeur of individual autonomy and spontaneity both in and outside the home: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition, the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”

Supreme Court justices, however, are confined to interpreting the Constitution according to customary canons of construction intended to limit and constrain caprice or idiosyncrasy. If the Supreme Court, aping Humpty Dumpty, makes words mean whatever it wants them to mean, then the Constitution is a snare and a delusion. On that score, Justice Kennedy’s opinion is spare of a reasoned connection between his philosophical ruminations deifying personal liberty and disparaging homosexual sodomy laws and the earthbound text of the Constitution. He simply ordains a result he would cherish as a Platonic guardian. The following passages are emblematic: “[Homosexual sodomy] statutes … purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in law, is within the liberty of persons to choose without being punished as criminals.”

“This … should counsel against attempts by the state … to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

But the Constitution also specifically empowers government to curtail individual liberty so long as due process is followed. The liberty of occupational choice is protected by the Constitution, but the state by statute may require occupational licenses or accreditation or limit compensation or hours of work. The choice of a marriage partner is a liberty protected by the 14th Amendment. But states may nevertheless enact statutes forbidding polygamy or bigamy to honor prevailing moral sentimentssaluting monogamy.

Enlisting the aid of an earlier misconceived abortion ruling, Justice Kennedy insisted: “At the heart of liberty is the right to define one’s own concept of existence, the meaning of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.”

These slabs of fatuousness are embarrassing to discover in a Supreme Court opinion. A fanatic whose concept of existence and understanding of the universe is an attempted replay of September 11, 2001, would pay with his life for indulging that liberty. A belief that child pornography or prostitution is a mystery of human life would be no defense to a criminal prosecution. And parents whose concepts of existence exclude educating their children could claim no constitutional exemption from a compulsory education law.

Justice Kennedy recognized his exuberant odes to freedom and autonomy, if applied in a principled and evenhanded manner, would mean anarchy and the end of ordered liberty. His peroration thus stressed that the Lawrence precedent did not require states to authorize homosexual marriages or otherwise to treat homosexual and heterosexual relationships identically. Indeed, he indicated the libertarian effusions in his opinion would be unpersuasive in any case beyond homosexual sodomy, a hedging characteristic of constitutional frolics.

Justice Kennedy closed with an oblation to a homonymic Constitution which takes on new meaning for each generation as the enlightenment of modernity eclipses the moral wisdom of the Founding Fathers. That homage to a judicially engineered living Constitution epitomizes the type of flabby and freestyle thinking President Reagan hoped would wither on the Supreme Court. The Lawrence decision coupled with Justice Sandra Day O’Connor’s affirmative action facetiousness a few days earlier in Bollinger vs. Grutter has killed Mr. Reagan’s hope.

Bruce Fein is a founding partner of Fein & Fein.

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