KANSAS CITY, Mo. (BP)–In The Federalist, Alexander Hamilton stated, “The judiciary is beyond comparison the weakest of the three departments of power.” Hamilton was referring to the court’s inability to either tax (a power given to the legislature) or command the armed forces (a power granted to the executive). Hamilton added that the judiciary is weak because “it can never attack with success” either the legislature or the executive office.
The Supreme Court’s recent Lawrence v. Texas decision demonstrates that the court now has a type of power, which I believe, was inconceivable to the authors of the Constitution.
While the court still does not have power to command troops in battle, it definitely has assumed an aggressive position in a different kind of war, a culture war. In this war, the Supreme Court now exerts a raw form of moral and philosophical coercion.
In Lawrence v. Texas, the Supreme Court voided a Texas law prohibiting homosexual intercourse. In so doing, the court reversed a 1986 ruling, Bowers v. Hardwick, in which the court had said that laws prohibiting such behavior are constitutional.
What motivates the court to make such a decided shift in direction a mere 17 years later? In the opening paragraph of the decision, I believe Justice Kennedy gives us the court’s rationale when he writes, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Note well the use of the word “autonomy,” because it is a particularly radical notion of autonomy that is the conceptual force behind this decision.
The radical version of autonomy that the majority advocates in Lawrence is intensely individualistic without reference to transcendent standards of moral accountability, for the justices also state: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
In Lawrence, the greater freedom the justices envision is the agenda of homosexual activists, a point made clear by Justice Scalia in his dissent. Is there warrant for this assertion? I think there is for the court states in Lawrence, “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.”
The court seems to make the assumption that every sexual encounter is part of an “enduring” personal bond. This is moral nonsense. Sex outside the confines of heterosexual marriage leads to promiscuity and exploitation of others. Sadly, this seems to be especially true with individuals who participate in homosexual activity.
Furthermore, though the Court claims the government cannot address these matters, the Court itself is indeed taking sides in a moral debate!
Writing for the majority, Justice Kennedy stated, “The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of criminal law.” Of course, the court answered the question with a resounding, “No.”
However, in so doing they actually have demanded that the rest of the culture accept and affirm moral choices made by homosexuals. This is consistent with the broader agenda of homosexual activists because they have never wanted mere tolerance. Instead, they want their position advocated. The Lawrence decision gives them the judicial power they need to achieve this goal.
When one speaks of having a government as opposed to not having a government, a worldview and conceptual step already is made. When a group of people establishes a government, they are operating on the assumption that having laws that prohibit some behaviors is better than not having any laws at all or anarchy. Our country was founded on the premise that the first approach is better. In contrast, The Supreme Court seems to favor a form of sexual anarchy. Logically, one wonders if laws prohibiting polygamy or prostitution will be able to stand the “Lawrence” test.
Judges 17-21 describes a time of near moral anarchy in ancient Israel. These chapters are bracketed by the phrase, “In those days Israel had no king; everyone did as he saw fit” (17:6 & 21:25).
The Lawrence decision seems to advocate the same type of self-centered morality that led to societal chaos, violence and exploitation in ancient Israel.
Branch is vice president for student development at Midwestern Baptist Theological Seminary in Kansas City, Mo.