Last edited: December 20, 2004


God Save This Vulnerable Court

National Review, August 15, 1986

By John Neuhaus

PUT ASIDE FOR the moment the question of whether there should be state laws against sodomy. Dr. Jerry Falwell is surely wrong when he says the Supreme Court "has issued a clear statement that perverted moral behavior is not accepted practice in this country." Among millions of Americans the culture of buggery is not only accepted but championed. What the Court said is that the text and structure of the Constitution do not establish the practice of sodomy as a "fundamental right."

The Court said other things that needed saying. In upholding the Georgia sodomy law, it said that in this Republic the people have a fundamental right to make their own laws, within the limits specified by the Constitution. In making such laws, the Court further said, the people may properly be influenced by tradition, custom, and religious belief. When judges try to override this democratic process by imposing their own values, they are themselves acting unconstitutionally. In the words of the majority opinion by Justice Byron White: "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

Divorce Proceedings

Whether or not there should be a law against sodomy is for the representatives of the people to debate and decide. Either way, it is a question of moral judgment. As Justice White says, "The law . . . is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated . . ., the courts will be very busy indeed." Furthermore, the courts would be busily putting themselves out of business, for a democratic people would not long countenance a legal system that formally divorced law from moral judgment. Admittedly, law and moral judgment have too frequently been separated in recent decades. But a final divorce decree has not come through, and now, at long last, the Court may be favoring a reconciliation.

Justice Harry Blackmun, in bitter dissent, unfurled the tattered banner of unbridled individualism. Two centuries of American jurisprudence may be described as a descent from Providence to privacy, but Justice Blackmun thinks it’s progress all the way. With remarkable candor Blackmun argues that the Court’s only reason for interest in questions of marriage, family, childhood, and sexuality is that they bear upon the freedom of the individual. Seldom has the classical concern for the "common good" been rejected so explicitly. Blackmun writes: "We protect [such] rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual life." It is a revealing glimpse into the mind of the author of the Roe v. Wade decision on abortion.

Consistent with his libertarian premise, Blackmun would employ judicial coercion to liberate the individual by destroying the bonds of community and tradition, even when such bonds are legitimated by democratic consent. He cites the infamous statement of Justice Holmes: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Yet more revolting is the hubris of judges who declare the people’s wise affirmation to be blind imitation, and who conform the law to "current values" as defined, of course, by themselves.

But the full force of Blackmun’s animus is saved for religion. I do not know whether he is against religion as such, but he is certainly against religion that is so impertinent as to impinge upon the res publica. In the present case he detects religion breaking out from the sphere of privacy to which it is properly consigned. Blackmun says he is not impressed by the "invocation" of Leviticus, Romans, and St. Thomas Aquinas to the effect that sodomy is gravely wrong. "The legitimacy of secular legislation," he argues, "depends . . . on whether the state can advance some justification for its law beyond its conformity to religious doctrine." Surely he is right in that. However, he overlooks the fact that Georgia and other states do advance justifications beyond religious doctrine. Such justifications have to do with the common good, but we have seen what Justice Blackmun thinks of the common good.

Public Nuisance

Blackmun, it is to be feared, does not want justifications "beyond" religion; he wants justifications that exclude religion. In this view, the inclusion of religion or religiously based morality lethally taints the law. Says Blackmun, "A state can no more punish private behavior because of religious intolerance than it can punish such behavior because of racial animus." Religion, when it impinges upon the public arena, is by definition religious intolerance. Legal historians note that in the last four decades there has been scarcely a Supreme Court reference to public religion that is not strongly pejorative. Providence is protected by the privacy doctrine, so long as it doesn’t make a nuisance of itself in public. Such is the perversity of mind that has made the Court so vulnerable to challenge by democratic theory and practice. That is the most important perversity addressed by Justice White’s majority opinion.

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