Tuesday, July 15, 2003

Sodomy Goes Straight

Like the Annika thing, this is more old news, but I have a feeling its effects have not yet begun to snowball. All that's in the future which, to a Christian, I don't think is going to be very pretty. A part of it will have been fashioned by the Supreme Court's striking down of the anti-sodomy law in Lawrence vs. Texas, and by the sleepy acquiescence of your fellow citizens. We'll call it, for the time being,

Sodomy Goes Straight

As in mainstream, as in all sex acts are the same, as in they are accorded equal dignity, as in there is no longer in our jurisprudence a sliding scale moving from good to bad to worse to beyond the pale. Now, I'm no constitutional scholar and I certainly ain't no lawyer, but, being slow to evolve with the times, I'm of the opinion that the common man has a right in this country to question the judgement of his betters - government of the people, by the people and so on - and what it looks like to me is that the court (excuse me, Court) has found in our Constitution a right of certain of its citizens to commit a transparently perverse and filthy act without risk of having their dignity impugned, their status as thoroughly upstanding citizens questioned, their space unnecessarily encroached upon, nor their moral variance from the trodden path pointed out to them. In sum, the Court, feeling their pain, didn't want to hurt their feelings. I know this because of certain sentences and phrases that kept cropping up, things like: "To say that the issue ... was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse." Yes, just as. And this: "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons." And this: "...touching upon the most private human conduct, sexual behavior, and in the most private of places, the home." And this: "The issue is whether the majority may use the power of the State to enforce these views (ethical and moral principles) on the whole society through operation of the criminal law." I guess not, because Justice Kennedy went on to use the power of his State-appointed position to enforce upon the whole society his own minority view.

I followed a link from somewhere and, like an idiot, went and read the whole damn decision. Even if I hadn't known what it was ahead of time, I'd have figured the game was up from the first sentence: "Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act." The Court seems to define the act, in its essence, according to its private and consensual nature, not according to what actually takes place, what it is. (Of course, since Bill Clinton, that word's in trouble.) If you've got some time to kill, count the number of times "private" and "consent" (or some variation thereof) show themselves. Other pop-up buzzwords to be on the lookout for are "stigma," "demean," "intimate," "most personal," and "choice."

Now, I know these judges are real smart people. They have endured a lot of education at prestigious colleges and law schools, spent a lot of years on the bench, and have kept their faces in the books, studying the constitution all day long. Except for Scalia, their prose styles show it. They're so smart they've decided, by wearing their graduation robes to work every day, not to let the rest of us forget it. But since the decision they rendered was pretty much the one I expected, the question that came to mind was not how they arrived at it, but whether these philosopher kings and queens ever wondered, or cared, how it played with us commoners. Do they ever laugh at themselves? Do they re-read certain passages and ask, "What the hell was I thinking?" Passages like this, in which Justice Kennedy, feeling cramped by the legalese, writhes in rhetorical ecstasy: " 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." The layman wonders: is this kind of language legal? If so, there ought to be a law. Is this metaphysics or mysticism? It looks suspiciously like the kind of flourish a lawyer might resort to when the plain text of the legal document before him does not clearly embrace the expanse of his purpose. All he's trying to do is de-criminalize anal intercourse. Why can't he just say so without sounding like a Catholic theologian on fire with the spirit of Vatican II?

The layman (me, for example) might also wonder about other things, and wonder if the justices wonder with him, to wit: why do Supreme Court decisions so often seem to contradict established social goods, some of which are even acknowledged by the Court's own precedents? Over at NRO, prior to the decision, Robert P. George informed us that "The Supreme Court has never recognized a right to fornication, adultery, or any other form of sexual misconduct," and further, "Under prevailing law, the marriage relationship enjoys constitutional protection; sex outside the marital bond does not." Cool, you're thinking, right? But maybe you've forgotten that in 1965 along came a case called Griswold v. Connecticut and the modern, previously unarticulated, right to privacy emerges chimera-like from the shadowy, labyrinthine passages (the famous penumbras) of its constitutional cave and begins morphing quickly into the progenitor of our modern social horrors: broken families, pregnant teens, and millions upon millions of abortions. Griswold struck down the prohibition against the sale of contraceptives by the sterility-drug pushers and their use by married couples. The reasoning seems to have been that to deny such use was, according to Mr. George, to "interfere in a damaging way with the marital relationship." So who was bothering them in the first place -peeping Toms, the bogeyman? This is a strange sort of "interference," where one must leave the bedroom to go to the doctor or the drugstore to purchase something that will ensure one's privacy. Well, people wanted their contraceptives, and the Court wanted to please them, with the intent of nurturing the permanence of the marriage bond. So what happens? Marriages start falling apart. One of the purposes of having the prohibition in the first place was to inhibit adultery. All of a sudden adultery becomes easy and marriages disintegrate. Amazing isn't it? I wonder if the justices ever think about it.

But that's hardly the end of it. A few years later another case, Eisenstadt v. Baird, extended the contraceptive privilege to unmarried persons because, after all, can the "right of privacy" (the Court now using the phrase with casual abandon, as though it were a matter of longstanding custom) be logically denied to individuals for the mere fact that they are single? Of course not. If there's a right of privacy in the constitution, we're all equally protected by it, aren't we? Again, as with married people, it's the kind of privacy dependent upon items not naturally occurring in the bedroom. And again, according to Mr. George, the court merely held that compelling folks to endure the risk of pregnancy in order to deter fornication was not permissible. "Nothing in either case forbids states from banning outright adultery, fornication, or other immoral sex acts. On the contrary... Eisenstadt and other cases expressly acknowledge the authority of government to prohibit such acts." So it's like this: the Court thinks the state's desire to inhibit promiscuity is a good thing, so they hand down a ruling making contraceptives widely available to everyone, which will have the natural effect of inculcating the virtue of chastity among a population of young and sexually vigorous single people. That's why we have so many out-of-wedlock births and rampaging STD's. Those justices are real smart and probably see something I don't.

But we're not done yet. Next comes the case that causes some of us the most sadness, Roe v. Wade, wherein the right of privacy, invented to protect the marital bond while inadvertantly destroying it, stretches out its arms to embrace our right not merely to prevent the conception of children but to actually kill them once they are. It's not that the justices were promoting abortion, just permitting it. It was not that Justice Blackmun had anything against babies in utero, just that he was for women. Since he knew that women were people, but couldn't make up his mind whether babies in the womb were or not, he decided it was okay to kill the latter. Now with me, it's different. Normally, before I kill something, I'd like to know what it is I'm killing. It seems the safer course of action. Anyway, just as there was no desire to encourage promiscuity with their contraceptive rulings, I presume the justices harbored no desire to encourage abortion. When the abortion rate skyrocketed after the ruling, I wonder what Justice Blackmun thought of it. As the years passed and the toll mounted into the millions, I wonder if he had any second thoughts. Well, he's dead now, so he probably sees the big picture. I wish he could come back and tell us what it says. It would be interesting.

And then the inevitable happened. That right of privacy, usually in the form of the due process clause (Justice Kennedy's favorite) or the equal protection clause (O'Connor's favorite), just wouldn't stop mutating, and so they went after our children. In Carey v. Population Services Int'l, the court did away with a New York law forbidding the sale or distribution of contraceptives to persons under 16 years of age because, yes, they are protected by the constitution as well. Now 16 is below the age of consent in some states, so it's hard to believe the justices were trying to encourage promiscuity among our teenagers, or to "interfere" with the "bond" between parents and their children. No, it was simply the relentless logic generated by the right to privacy. It had a life of its own; it couldn't be stopped. No lessons were drawn from the experiments on married and single adults, and promiscuity is exactly what we got. Those of us who have to live in the real world could have predicted it, but it doesn't matter what the real world tells you. Stare decisis. The law must be consistent even at the expense of common sense and normal human feeling, and you have to pass through an alternative reality, like Harvard Law School, to see the beauty of it.

Does anyone besides me see a slippery slope here, for the espying of which Senator Rick Santorum suffered much vilification, even among conservatives? Actually, yes. All the cases I have just mentioned are neatly laid out for you by Justice Kennedy himself in his Lawrence ruling. He even takes you by the hand and walks you down the hillside, showing you where to place your feet so that you won't slip on the slope. The catch is, he's proud of it. He doesn't seem to think it's a slope, or that it's slippery, or even a little bit muddy, or that, once we're on it, the only way off is down. I think he sees it more as an ascent, a sure-footed mountain climb to the pinnacle of enlightenment, a natural progression upward to Lawrence and beyond to the day when...what? Let's not think about that yet. It's too distressing.

After the decision came down - even though it was only what I expected - I felt in need of cheering up, so I picked up a back issue of National Review (it was on the sofa beside me and had been for weeks) and started reading, hoping the barkeep would serve up some solace. And what do I come across but an editorial (unsigned, of course, and so presumed to be speaking largely for the aggregate, for Derbyshire's "metropolitan conservatives") that, unlike Santorum, their fellow conservative, expresses serious doubts about the existence of the slippery slope: "Santorum's slippery slope...seems stronger as a matter of logic than of legal prediction." (Notice the disjunction between logic and legality. You'd think it would raise an eyebrow.) So...if you could have looked forward from Griswold and seen the future, all those cases we have cited and nicely laid out by Justice Kennedy, do you think they would have borne up as matters of "legal prediction?" NR elaborates: "Recognition of a constitutional right to consensual sexual activity would seem logically to preclude laws against incest; but the Supreme Court has squared bigger circles before." I trust them. Don't you? It's one of those editorials that makes it hard to tell where they really stand. They think Santorum was treated unfairly, but that his words did not express "wisdom." They think the Texas sodomy law ought to be repealed, but they don't want the Court to do it. They think that "state and local governments have a role to play in support of public morals" (e.g., laws against incest and prostitution), but they don't want a law against sodomy. Why? "Seriously to enforce such a law would be brutal." Read Kennedy's decision: such laws have never been seriously enforced. But, anticipating this: "...and to leave the law on the books, but rarely and selectively enforced, would be unfair and foster disrespect for law." I can see them now, our local thugs huddled together in a room somewhere, strategizing: "Y'know, they got this law against queers out in Texas but nobody pays attention. Let's go rob a 7-11." And further: "To ban same-sex sodomy but leave heterosexual conduct unregulated, as Texas does, seems odd if the goal is to promote sexual morality." And repealing the law would promote sexual morality, or encourage the lack of it among heteros? All right, I've heard this latter argument before, about including heterosexuals, and I'm finally sick of it. The editorial does not say whether they (the NR crowd) would be content with the law if it did include heterosexuals. I suspect they would not, for the only ground they would find acceptable for the court's overturning the law is that of equal protection, which Justice O'Connor, in her concurrence, proceeded to oblige them with. In fact, she goes further, stating outright what NR will not: "I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society." (Of course, "democratic society" will have little to say about it. O'Connor, Kennedy, and their cohorts will have the final say.) It sounds to me as if O'Connor is warning the states not to send her a law re-fashioned along those lines, because if they do, she'll overturn that as well.

Now, let me chant along with the chorus that I do not want homosexual sodomists rousted from their homes and thrown in jail, and if you want to rewrite the law to include heterosexuals, fine with me. I further suspect that men and women, single or married, ought not to be indulging the practice of sodomy. Even as some variant of foreplay, it shows evidence of a fascination for an unnatural tendency, for the perverse. It is pure lust. But the fact that the parties to it are man and woman allows us at least to hold hope for the possibility that this union will ultimately be consummated in the normal fashion. With homosexuals, this is never possible. A law aimed specifically at that group says two things, only one of which condemns their sexual habits. The other says that their "unions" are disordered at their inception, before they ever get to the bedroom. The law, in short, is a signal from society, a badge of shame that need not be worn in public but serves nonetheless as an ever-present, nearly invisible reminder that we do not accept what they do, and never will. It serves as a quiescent rearguard against talk of other things, like gay marriage, the cacophony of which argument will now, through the media, assault our sensibilities daily, and our personal lives more intimately.

What, for example, do you think is going to happen to certain textbooks in your children's schools? To the free speech rights of students and teachers who have moral objections to homosexual behavior? To the public posture of gay teachers of children who heretofore have found discretion the better part of a valorous "coming out?" To our civil rights laws, now that the right to a degrading sexual practice, like the right to abortion, has been enshrined in our constitutional law? Take it from there.

The National Review editorial concludes with what amounts to a concession, because they knew what was going to happen: "If the Court rules against the law on the equal protection basis...it would at least not raise the slippery-slope concerns that exercise Sen. Santorum." But not NR. This is what gets me about these legal experts: they don't seem to care how it looks to the non-expert. What the latter sees is that sodomy is now legal. He doesn't care what clause or "basis" was used to accomplish it. An evil is now legal and the slope still looks slippery, because he knows the justices will put that basis to whatever purpose suits them at the time. I think a reader's letter-to-the-editor summed it up wonderfully: "There are two purposes to the criminal code: to decrease undesirable behavior through fear of punishment and to serve as a public-policy statement as to which activities are frowned upon by society...What your editorial actually states is that NR has joined the ranks of those no longer brave enough to condemn." Amen, Mr. Bemis. I hope life is tolerable for you up there in Hillary country.

When I said at the beginning that this ruling renders all sex the same, some will object that I go too far. And they have a point. Even Justice Kennedy, perhaps sensing the breadth of the swath his intellectual thresher is cutting through the autumnal, once-verdant field of our moral culture, does a little dancing in the barnyard, his belated attempt to assure us that victims of rape, sexual child abuse, and incest will not find the umbrella of the law's protection withdrawn: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Could this last refer to marriage? But how will he refuse them? The "liberty" he has granted is based purely on a right to privacy and on mutual consent. He finishes his thought: "The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives," (the Texas law, of course, allowing them their private lives but not the public respect, which is what I suspect he finds most irksome.)

But Mr. Justice Kennedy, many homosexuals want to make marriage a practice "common to the homosexual lifestyle." And since, in marriage, sexual intimacy (not formerly of the kind you have now given constitutional protection) seems to come with the territory, on what principle of law - not of sociology, or psychology, or of any other field of inquiry - but of law will you deny to them this most sublime of human bonds? And don't appeal to the law's reliance on our nation's "history and tradition", for you have already conceded, in your defense of personal "autonomy," that there is no such thing, or at least that no one tradition is better than any other: "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." I rather imagine that an Andrew Sullivan will have no trouble fitting marriage into his concept of existence and the mystery and meaning of human life. All he needs is another man to give consent. How will you say no?

I am not optimistic that he will, for here is the most concise rendering of his judicial philosophy I was able to find, and in his own words: "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." How will he say no?

How will he say no to prostitution, a consensual, adult transaction capable of being conducted purely in private?

How will he say no to adultery, a purely private, consensual, adult transaction?

How will he say no to bestiality in the privacy of one's barn, in which only one party's consent is required, and is always given? On the basis that it doesn't involve two adults?

Suppose a group of differently minded adults - say a man and three women, five women and three men, variorum ad infinitum - decide they'd like to marry to fulfill their concept of the meaning of life? How will he say no?

Suppose the age of consent in some state is 16, and a resident, full-blooded brother and sister decide to get it on? How will he say no? A father and his teenaged daughter? How?

This matter of consent is treacherous territory. It's purely subjective, and that's why the law has to draw objective lines, to keep subjectivity from running rampant, even though we know that the age of consent, the ability to discern what they are consenting to, arrives for different people at different times. Not long ago, I was watching one of those legal documentaries on A&E, the kind that follows some cops around in the course of their duties, and they came upon the case of a 13 year old girl who was being sexually molested by an adult woman in whose charge she often was. The woman might have been a nanny, or even an aunt - I can't remember. But she was well-known to the family and the 13 year old, and she seduced the girl. The cops wanted the child to testify against the woman to make prosecution possible, but the girl's resistance was formidable. She liked the woman and she liked the sex. She had given her consent. The cops finally got her to turn the woman over, but it was hard to tell if this was the result of legal and familial pressure, or if she had finally seen the light. I don't think she saw the light. Do you think, in the wake of the Court's decision, that the age of consent will now come under attack as the shibboleths of autonomy, privacy, and consent rule the day?

How is an organization like NAMBLA allowed even to exist in this country, and to lobby unhindered for their peculiar interests? Ah, that's a different matter, a matter of free speech. I guess Justice Kennedy hasn't found a penumbra to get around it.

The objective line must be drawn. As we cannot allow that 13 year old to define her own age of consent, neither are we obligated to extend an uncircumscribed privilege of the same to adults. Certain forms of sexual behavior, homosexual sodomy among them, are not good for their practitioners, nor is that compassionate sense of tolerance that would strip away any form of reprimand, even if, in the legal arena, it amounts to nothing more than an affront to conscience. This assertion depends on the belief that there really is such a thing as virtue, sexual and otherwise. Do we believe it anymore? Some do. They just don't get a lot of airtime, or space in the press, or standing before the courts of our land. They are not carrying the day.

A final thought and we're done. What most riles me about this decision is what a slap in the face it gives to the bedroom activities of every father and mother in the country. My special sympathy is with the woman, who allows a man (her husband, we hope) the ineffable privilege of putting a part of himself inside her, and inside her is where everything important will happen. She will give her body over to it for a significant period of time. Now, courtesy of the Court, she can ponder the new dispensation that allows the surrender of her body to the gift of life no more standing in law than the grotesque parody enacted by homosexuals. It's as though your mother had just spent a lot of time preparing a meal of several courses, and then some homeless guy wanders in off the street and pisses in the soup. And in the world of sex and love, that's what the "active" homosexuals are to me - homeless. They think they've found their true destiny, but I think they're lost. They think they're in love, but I say that, pursued in this way, they can't know what the love revealed in the vow to become one flesh really is, and they won't believe it when I say I wish them no ill. Among those spiritually inclined, especially toward Christianity, I know that the cross they are asked to bear is heavier in some ways than that asked of heterosexuals, which fact leads me to wonder if they might not actually be here for some higher purpose, but most will not believe that either.

But let's not pretend that the fault is all the Court's or the agitations of activists. It may be, as some have said of the Catholic bishops, that we get the justices we deserve. We elect the presidents who nominate them, and the congressmen who confirm them. Californians are trying to recall a governor, but the Supreme Court sits unmolested. I hear no outraged call to impeach a justice, no movement afoot to take back our nation. We have played our part and now we sleep. We wanted our contraception and the Court obliged. They followed the logic of their decisions, and we can't figure out how things came to such a pass. It was the logic we asked for. Most may still feel that the hetero way is the normal way, but it's every bit as barren. Sterile sex is the norm now, and everything is permissible. If there's a whirlwind to follow, the reaping of it cannot be deferred to four men and two women in dark robes sitting in a chamber somewhere in Washington

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