WAKE FOREST, N.C. (BP)–In 1986, Michael Hardwick filed an action in federal court attempting to have the court declare Georgia’s anti-sodomy law unconstitutional.
The case went all the way to the Supreme Court of the United States. Justice Byron White wrote the court’s opinion in Bowers v. Hardwick and succinctly stated the issue noting that Hardwick “would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.”
On June 26, in a stunning ruling that only can be compared to the effect of Roe v. Wade 30 years earlier, the Supreme Court, with five justices agreeing, overruled Bowers and created a constitutional right to engage in homosexual sodomy. In Lawrence v. Texas, Justice Anthony Kennedy wrote an opinion declaring that the liberty and privacy rights found within the Due Process Clause of the 14th Amendment to the United States Constitution confer upon consenting adults a right to engage in sodomy, and seemingly anything else they so choose, within the privacy of their homes.
The ruling did not surprise those who carefully follow the court. When the court unexpectedly agreed to hear the case last fall, many suspected that there were a sufficient number of justices to overrule 1,000 years of common law precedent in order to advance the homosexual agenda. The questioning at oral arguments made legal scholars even more apprehensive. The majority of the justices were openly hostile to the attorney for the state of Texas.
While many expected the result, I know of none who predicted the sweeping nature of the opinion. It could have been written by the American Civil Liberties Union or the gay rights legal foundation, the Lambda Defense Fund.
As a constitutional historian, I can think of only three other decisions in more than 200 years of Supreme Court jurisprudence as blatantly based on the personal opinions of the justices without any support in the text of the constitution: Dred Scott v. Sandford in 1856 declaring blacks not to be human beings, Roe v. Wade in 1973 creating a constitutional right to abortion, and the less well-known, but arguably more important, Griswold v. Connecticut case in 1965 which created a right to privacy. Griswold’s right of privacy is the basis of both Roe and Lawrence.
The opinion was written by Justice Anthony Kennedy, who was appointed by President Reagan as his third choice. The flaws in the opinion are too numerous to discuss here. Justice Kennedy, citing a dissenting opinion by Justice Stevens, asserted that morality could never be a basis for law. While lofty sounding, the assertion cannot bear scrutiny.
Most laws are based on notions of morality. Murder, theft, prostitution, bigamy, fraud, and most other laws are designed to proscribe what most Americans view as immoral conduct. As Bowers itself noted, “If all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
The privacy right created in Lawrence is based on the most dubious and most criticized doctrine in the Court’s jurisprudence — a concept known as “Substantive Due Process.” The 14th Amendment states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the Untied States; nor shall any State deprive any person of life, liberty, or property without due process of law.”
A straightforward reading of the constitution would seem that this involves two things: the privileges or immunities of citizens (their substantive rights) and proper process — a jury of one’s peers, appointed defense counsel, the right to confront witnesses, etc.
However, the court has held that Due Process also includes certain substantive rights that are “fundamental to ordered liberty” yet for some inexplicable reason not mentioned in the text of the Constitution. Most prominent of these is the right to privacy relied upon in Griswold and Lawrence. Legal scholars of all persuasions — liberal, moderate, and conservative — have criticized the concept of substantive Due Process as a vacuous legal fiction that permits the Court to sit as a super-legislature and invalidate statutes that it dislikes.
If the ruling applied only to private consensual sodomy between consenting adults its actual effect would not be that consequential. Law enforcement officials do not routinely break down doors and invade homes seeking to discover persons violating the sodomy, adultery or fornication statutes. Indeed, lacking probable cause, in most cases it would be unconstitutional for them to do so. Kennedy’s opinion conceded that the laws were almost never enforced against private consensual acts.
However, the court did not explicitly declare a right to engage in sodomy; instead, it declared a right of privacy entitling consenting adults to do as they choose in private. It is difficulty to conceive how prostitution, bigamy, bestiality, adultery, fornication or incest statutes are constitutional after Lawrence. As long as all participants are adults and willing, the newly announced privacy right allows carte blanche to do anything one’s heart, or lust, so desires. While less clear, it is arguable that the ruling even creates a right to gay marriages, and without doubt, that claim will be quickly asserted.
This new right is especially catastrophic to religious organizations. All five major world religions have historically taught that sexual relations outside of marriage are wrong. As long as sodomy was a crime, religious organizations were free not to hire such persons.
Now anti-discrimination laws may force churches to hire business managers with common-law wives or Christian schools to hire teachers who are practicing homosexuals. And as long as those laws do not single out religious organizations but are “neutral laws of general applicability,” the First Amendment’s Free Exercise Clause does not protect the religious organizations.
This opinion underscores the importance of courts. Justice Kennedy was President Reagan’s third choice for this seat. He first nominated Judge Robert Bork who was denied confirmation by the Senate. It is unimaginable that a Justice Bork would have authored this opinion.
Justice Kennedy seems to be deeply committed to the concept of homosexual rights. In overruling Bowers he declared: “Its continuance as precedent demeans the lives of homosexual persons.” He also wrote the opinion in Romer v. Evans that invalidated a state constitutional amendment passed by the voters of Colorado that required sexual orientation be given neither privileged nor disfavored status.
Justice Kennedy and all Americans have a right to advocate for homosexual rights within the democratic process. However, Lawrence short circuits the democratic process and fosters the view of the minority of the population whom support the homosexual agenda upon all Americans.
Lacking the eloquence to say it as well, I quote Justice Antonin Scalia, who wrote in his dissent, “It is clear from this that the Court has taken sides in the culture war, departing for its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
Stephen R. Prescott teaches church history and constitutional law at Southeastern Baptist Theological Seminary. He is a magna cum laude graduate of the University of Florida College of Law and served as law clerk to Chief Judge C. Roger Vinson.