Men in Black (9 page)

Yet
Roe
has survived, despite attempts to overturn it. Blackmun’s personal papers reveal that Justice Anthony Kennedy made a last-moment switch and abandoned one such attempt in
Planned Parenthood v. Casey
,
⁴¹
decided in 1992, thereby providing the crucial fifth vote to uphold
Roe
.
⁴²

There are some interesting parallels between Kennedy and Blackmun. Both were their presidents’ third choice for the Supreme Court and were considered competent but not exceptional when vetted by the White House. And, like Blackmun, Kennedy is going through a leftward evolution on the Court.

Kennedy, Justice Sandra Day O’Connor, and Justice David Souter issued jointly the majority opinion of the Court in
Casey
—a very unusual move. The Court allowed certain restrictions on abortion, but left the essential holding in
Roe
intact.
⁴³

The three justices began by stating the Court’s obligations: “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision.
Our obligation is to define the liberty of all, not to mandate our own moral code.
The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest.”
⁴⁴
(Emphasis added.)

Of course, defining and establishing parameters for liberty (and life) do involve moral questions. Justice Kennedy, like Justices Douglas, Brennan, and Blackmun before him, delivered his own speech on the right to privacy: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of 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 compulsion of the State.”
⁴⁵

These words have been ridiculed by many, including Justice Antonin Scalia, as the “sweet-mystery-of-life” passage.
⁴⁶
Scalia later wrote, in a different case, “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.”
⁴⁷

The “right to define one’s concept of the universe” is the modern incarnation of the emanations from penumbras that allegedly provided a right to privacy. It is just another meaningless, pseudo-sophisticated phrase by which justices evade our constitutional framework and impose their personal views on the rest of us. Almost ten years later, Kennedy, in concluding that homosexual sodomy is a constitutional right in
Lawrence v. Texas
, declared, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
⁴⁸
Liberty also presumes, indeed requires, something our courts lack: fidelity to the rule of law and respect for the legislative branch of government, where controversial issues can be resolved through the elected representatives of the people, rather than a handful of unelected justices.

There are no more emotional and controversial moral and societal issues than those related to privacy, personal behavior, and liberty. And it’s for this reason that public influence on government policy, exercised through the respective branches of government, is so crucial to ensuring the legitimate and proper functioning of a constitutional republic. To be true to its constitutional role, the Supreme Court should refuse to be drawn into making public policy, and it should strike down legislation only when a clear constitutional violation exists. When judicial activists resort to various inventions and theories to impose their personal views on privacy and liberty, they jeopardize the legitimacy of the judiciary as an institution and undermine the role of the other branches of government.

“The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

Justice Antonin Scalia, 2003
¹

H
ow did “gay marriage” become a major public policy issue? After all, there has never been any popular movement to change the country’s marriage laws. Even in New York, a liberal city with a large homosexual population, a 2004
New York Daily News
poll showed a majority of voters opposed gay marriage.
²
The push for gay marriage is coming not from the people and their legislatures but from a small minority attempting to impose its view on society through the least democratic branch of government: the judiciary.

Gay advocacy groups don’t hide the fact that they seek to advance their agenda by judicial fiat. A brochure distributed by the Lambda Legal Defense and Education Fund makes no pretense of trying to enact its wishes through the democratic process. It focuses only on the courts, stating, “The power of fighting for the freedom to marry is undeniable—and we’ve just begun! Considering it took until 1967 for the Supreme Court to finally overturn state bans on interracial marriage, it has been just a historical eye-blink since 1996 when a Hawaii court found there is no reason to ban gay people from civil marriage.”
³

Much of the rhetoric surrounding gay marriage has been wrapped in the language of civil rights (homosexuals should have the same right to marry as heterosexuals), economic equity arguments (homosexual couples should have the same access to financial benefits as married heterosexual couples), and child welfare claims (it’s better that a parentless child be adopted by a loving homosexual couple than be left to languish in foster care). But these are not questions for the nine unelected justices of the U.S. Supreme Court to decide. They are questions for the people to resolve through their elected representatives.

Although the debate over gay marriage began in the states, the Supreme Court has ruled on related matters that will have serious ramifications on how the issue is ultimately decided. Over the last twenty years, it has decided two cases addressing the constitutionality of state sodomy laws:
Bowers v. Hardwick
(1986)
⁴
and
Lawrence v. Texas
(2003).
⁵
And it has ruled on a state constitutional amendment that denied special rights to homosexuals:
Romerv. Evans
(1996).
⁶

The issue in these cases is whether we, as Americans, can enact into law basic moral beliefs, shared by an overwhelming majority of our fellow citizens, without the Supreme Court’s interference.

Of course, some activities, even if they occur in the privacy of one’s bedroom, should be (and are) outlawed because they violate the widely shared moral principles of Americans. As William F. Buckley wrote recently:

To argue, as some do, that the government should stay out of the bedroom, or that we have an absolute right to privacy in our own homes, is to demand more than constitutional protection for homosexual behavior or homosexual marriage. The fact is that the government is in our bedrooms when it criminalizes certain conduct. The debate is over which branch of government gets to decide how, when, and why it can be there.

In recent cases, the Court has laid the groundwork for ruling that any laws governing morality are constitutionally suspect, which would appear to put traditional marriage at risk.

In
Bowers v. Hardwick
, the facts belie the hysteria about puritanical sex police bursting into people’s bedrooms with flashlights and nightsticks. (Even the
New York Times
noted that, “Sodomy laws are rarely enforced even where they remain on the books, in part because of the difficulty of proving violations.”
⁸
) In 1982, an Atlanta police officer went to Michael Hardwick’s home with an arrest warrant because Hardwick had not paid a fine for public drunkenness. Another man who lived with Hardwick answered the door and gave the policeman permission to enter and “look around” for him. The unwitting police officer found Hardwick in a room having sex with a man. He arrested Hardwick for violation of Georgia’s sodomy statute, which applied to both heterosexual and homosexual sodomy. Hardwick spent twelve hours in jail and was released. The prosecution dropped the charges against him without ever going to trial. A year later, Hardwick brought a civil suit in federal district court for a ruling that the sodomy law was unconstitutional.
⁹

After the Court of Appeals for the Eleventh Circuit agreed with Hardwick that homosexual conduct was a fundamental right free from state regulation, the Supreme Court decided to hear the case. Justice Byron White, appointed by President John Kennedy, wrote the majority opinion for the Court, split 5–4, rejecting the claim that homosexual sodomy is a fundamental right. White noted that the rights announced in prior cases involving family, marriage, and procreation had no relationship with a right to engage in homosexual sodomy. Furthermore, he wrote, “any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.”
¹⁰

Hardwick wanted the Supreme Court to find a fundamental constitutional right to engage in homosexual sodomy. It refused. White noted dryly that despite the fact that the due process clauses of the Fifth and Fourteenth Amendments appear to focus only on the processes by which life, liberty, or property can be taken by the government, there have been many cases in which those clauses have been found to have substantive content—that is, they have become vehicles by which judges create new rights “that have little or no textual support in the constitutional language.”
¹¹
When a judge decides that the state has done something he disagrees with but which is not explicitly prevented by the Constitution, he can invent a new fundamental right that requires the court to step in and reverse a legislature’s decision.

The Court has tried, White continued, to assure itself and the public that these new pronouncements of rights never before recognized in the Constitution involve more than the naked imposition of the individual justices’ values on the states and the federal government. It has done so through various attempts to identify the nature of these new fundamental rights that require heightened judicial protection. These are said to be fundamental liberties that are “implicit in the concept of ordered liberty” or those that are “deeply rooted in this Nation’s history and tradition.”
¹²
This is mere window dressing, of course, because these phrases can be twisted and contorted to meet any individual’s subjective beliefs. Thomas Jefferson’s vision of “ordered liberty” might be quite different from Alexander Hamilton’s, or from Justice Sandra Day O’Connor’s, for that matter. The only vision of ordered liberty that should matter to a judge is the one enshrined in the Constitution.

As White argued, sodomy was a criminal offense under the common law and was prohibited by the original thirteen states when they ratified the Bill of Rights. When the Fourteenth Amendment was ratified, thirty-two of the thirty-seven states in the Union had criminal sodomy laws. Furthermore, until 1961, all fifty states criminalized sodomy. “Against this backdrop, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition,’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”
¹³

White refused to expand the Court’s authority to find new fundamental rights in the due process clause. “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no recognizable roots in the language or design of the Constitution.”
¹⁴

Hardwick had argued that his conduct, having occurred in the privacy of his own home, warranted special consideration. White summarily rejected the idea that the Constitution created an inviolable zone of privacy around the home, pointing out that “victimless crimes, such as the possession and use of illegal drugs, do not escape the law when they are committed at home.”
¹⁵
Furthermore, White noted that if Hardwick’s argument was limited to consensual sexual conduct, “it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.”
¹⁶

Justice John Paul Stevens, in his dissent, wrote, “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
¹⁷
White countered, “The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
¹⁸
Unfortunately, the courts have been very busy since White’s prediction.

In 1992, the citizens of White’s home state of Colorado passed an amendment to their constitution by a statewide referendum. It prohibited the inclusion of “sexual orientation” in civil rights laws that ban racial and religious discrimination. The amendment was prompted by the enactment of municipal ordinances in Denver, Boulder, and Aspen banning discrimination against sexual orientation much the same way racial and religious discrimination is outlawed. It passed 53 percent to 47 percent. Although a majority of the voters of Colorado had voted for the proposal,
Newsweek
magazine declared, “in Colorado the voices of hate have taken on a new edge.”
¹⁹
The
New York Times
later advocated a boycott of Colorado’s tourism industry to “send a potent warning to other states” that might pass similar measures.
²⁰
The night the amendment (Amendment 2) passed, Colorado governor Roy Romer, who later served as head of the Democratic National Committee during the Clinton administration, spoke to a gathering of homosexuals at the state capitol. With a bullhorn in hand, Romer said that if any state employees tried to enforce the measure he would fire them.
²¹
But Romer didn’t need to carry out his threat. Amendment 2 never went into effect. It was challenged almost immediately and its enactment was stopped by a Colorado state court.

The case eventually reached the U.S. Supreme Court as
Romer v. Evans
.
²²
Justice Anthony Kennedy wrote the opinion for the majority of the Court, which upheld the permanent injunction issued by the Colorado court against the amendment.
²³
Kennedy based his argument on the equal protection clause of the Fourteenth Amendment, which was originally intended to protect the newly freed slaves after the Civil War. Equal protection of the law, it should be emphasized, does not mean that every law must treat each group of people the same. As Kennedy himself admitted, “most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.”
²⁴
For this reason, laws challenged under the equal protection clause are generally analyzed by the Court under the rational basis test: The law must be reasonably related to a legitimate state purpose. If, however, the law affects a fundamental right, like voting, or a suspect class, like a racial minority, then the law is subject to the strict scrutiny test: It must be narrowly tailored to meet a compelling state interest.

Kennedy dismissed the primary rationale for the amendment: freedom of association for landlords or employers who have objections to homosexual behavior. The reasons offered for the amendment, he wrote, were “inexplicable by anything but animus toward the class it affects”
²⁵
and the amendment served no legitimate state interest.

Justice Antonin Scalia, in his dissent, argued that Amendment 2 was merely an attempt by the people of Colorado to maintain traditional morality. This attempt was not only constitutional, it was specifically approved by Congress within federal statutes and the Supreme Court in the
Bowers v. Hardwick
decision. He noted how Kennedy and the other justices had ignored
Bowers
and instead imposed their own political sensibilities on Colorado: