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Jewish World Review July 1, 2003 / 1 Tamuz, 5763

Cal Thomas

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End of the Constitution? | Has the end of the world arrived because the Supreme Court ruled no state may prohibit private, consensual homosexual conduct? No, the end of the world is being handled by the Supreme Judge. But the end of the Constitution has arrived, and that is something about which everyone in this temporal world should be concerned.

Writing for the majority that struck down the Texas anti-sodomy law, Justice Anthony Kennedy takes us on a journey with no fixed origin, no map, but a certain destination. His constitutional rewriting will lead to same-sex "marriage" and a Constitution that means to liberal judges what the Bible means to liberal theologians - a document to be tailored to the whims of culture, not the reverse. This, from justices named by Ronald Reagan (Sandra Day O'Connor and Kennedy) and George H.W. Bush (David Souter).

Beginning with the manufactured "right to privacy" created out of nothing by the godlike court in Griswold vs. Connecticut, Kennedy leads us through Roe vs. Wade (which many correctly predicted would follow Griswold) to the present Lawrence vs. Texas. He asserts that religious beliefs, history, tradition and even the desires of the majority to set parameters for the moral climate in which they wish to live are irrelevant. "Our obligation is to define the liberty of all, not to mandate our own moral code," said Kennedy. That can lead to anarchy.

Kennedy dismisses thousands of years of law, history and theology, choosing to rely solely on modern times: "In all events we think that our laws and traditions in the past half century are of most relevance here." Kennedy deletes the wisdom of the ages, preferring to download the squishy morality of post-modernism.

Sen. Rick Santorum (R-Pa.) predicted two months ago that if the court struck down anti-sodomy laws, challenges would soon follow to laws prohibiting bestiality, polygamy and all sorts of other sexual practices. We will now see him proved right (see Justice Antonin Scalia's remarks below). Prostitutes, call your lawyers.

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Kennedy said anti-sodomy laws "do 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."

Supreme Court decisions like this one also have far-reaching consequences. Griswold led to Roe, which led to partial birth abortion. And this ruling will lead to same-sex "marriage," because the court has removed from the people their right to create community standards for themselves. Inevitably, this will force the schools to teach homosexuality as normal and not just an "alternate lifestyle." The trend in that direction was already well advanced before this ruling.

It fell to Justice Antonin Scalia to say what needed to be said. While chiding the court for reversing itself in a Georgia sodomy case (Bowers vs. Hardwick) only 17 years ago, Scalia took the majority's arguments and turned them back. He noted that if the logic for reversal was applied to Roe, then Roe would also fall.

He said that the majority believe a case should be overturned if "(1) its foundations have been 'eroded' by subsequent decisions, (2) it has been subject to 'substantial and continuing criticism', and (3) it has not induced 'individual or societal reliance' that counsels against overturning. The problem is that Roe itself - which today's majority surely has no disposition to overrule - satisfies these conditions to at least the same degree as Bowers."

Then Scalia gets to the heart of it: "Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation."

No wonder Kennedy wants to ignore history and appeals only to the last 50 years for his constitutionally twisted and morally specious rationale. Scalia declared the end to "all morals legislation. If the court asserts that the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws (prohibiting fornication, bigamy, adultery, adult incest, bestiality and obscenity) can survive rational basis-review."

This ruling and similar court usurpations of lawmaking power from the people's representatives will, and should, be a major theme in the coming election campaign. We know where the Democratic presidential candidates stand, as well as most Democratic members of Congress. Where do Republicans stand, and will President Bush make this an issue, as he should?

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JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas Comment by clicking here.

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