No Gay Things Allowed?
News, March 28, 2003
By William F. Buckley Jr.
There are, of course, other wars, and one of them, on
Wednesday, was being waged before the Supreme Court. The question before the
house: Did the court rule improperly in 1986 in Bowers v. Hardwick, which
upheld the right of a state (Georgia, in that case) to declare as criminal,
homosexual conduct between consenting adults?
The pending case is similar to Bowers in almost every
respect: Two men in Houston were arrested for engaging in such activity. A
suspicion floats across the mind: Might this thing have been set up? Police do
not poke around looking for homosexuals having at it, any more than they bust
in to establish that you are smoking a marijuana cigarette.
It sounds a bit like the case a few years ago of the
elderly bicyclist who came upon a freshly scrubbed corner near the local
municipal building and saw there—sodomy? Genocide? Regicide? No, what he saw
was a granite monolith on which the Ten Commandments had been chiseled. This
affront on the separation of church/state narrowly cost him death through a
heart attack, but he recovered; and who should materialize to forward his
case? The American Civil Liberties Union, of course, which has since then
succeeded in banning the Ten Commandments, along with mangers and Christmas
trees, from public property.
In the Texas case, the conviction was appealed and
carried upstairs by the Lambda [Legal] Defense and Education Fund, whose
agenda is to abrogate all legislation banning, or frowning upon, homosexual
contact. Justice Breyer, in one exchange with the attorney representing
Texas’ Harris County, made the case that states that have laws simply as
expressions of moral disapproval impose grave consequences. “Bowers has
proved to be harmful to thousands and thousands and thousands of people ...
not because they’re (necessarily) going to be prosecuted, (but) because they
fear it.” Such anti-homosexual-practice laws are “a possible instrument of
repression in the hands of the prosecutors.”
Justice Antonin Scalia wanted the petitioner to tell him
why the state should not be permitted to express in legislation its moral
code. The attorney handled this by saying that straight men and women
routinely “commit adultery, fornication and sodomy.” To permit statutes
that single out gays for prosecution for engaging in similar activity is to
deny equal protection under the law.
Now disagreement with Justice Scalia is, for a few of us,
unconstitutional, profane and antinomian. But he does have difficulties in
this case. He acknowledged that anti-sodomy laws have been widely repealed,
that only four states are left with such laws as brought this case to the
court’s attention; but he asked the petitioner why this should matter.
“Suppose that all the states had laws against flagpole-sitting at one
time” and subsequently repealed them. “Does that make flagpole-sitting a
This was a move to discourage comprehensive action by the
court that would amount to elevating homosexual activity into a primary right,
which is what happened when the right of abortion was decocted from something
or other. The realization of yet another fundamental right, one more giraffe
armed with guarantees of due process, Justice Scalia is clearly bent on
The Texas law says that gays cannot do what non-gays can
do, and the facts of the matter weigh against Texas. Even if the prosecution
was brought on by agents provocateurs furtively setting out to add one more
right to the Bill of Rights, it’s hard to defend what the Texans did. The
only way to do it, of course, is to say that what Texas did/does is not the
Supreme Court’s business.
But this will prove hard, because in the Bowers case in
1986, the court acknowledged that it was the court’s business, and now it
will need to ask again whether due process, or equal protection, is involved.
Justice Scalia will say it is not, and his opinion will be interesting, as his
opinions are always interesting. It would be nice if Texas simply repealed the
law and let Lambda’s clients go back to their practices undisturbed.
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