In Texas Ruling, Supreme Court Denies Refuge to Bigots
St.
Petersburg Times, July 6, 2003
P. O. Box 1121, St. Petersburg, FL 33731
Fax: 727-893-8675
Email: letters@sptimes.com
http://www.sptimes.com/2003/07/06/Columns/In_Texas_ruling__Supr.shtml
By Robyn E. Blumner, Times Perspective Columnist
With gay marriage legalized in parts of Canada, and the
U.S. Supreme Court ruling last month that homosexual sex can no longer be made
criminal, Virtuecrats are scrambling to build a legal Hadrian’s Wall to keep
their barbarians—gay couples with formal status—at bay.
On ABC’s This Week, Senate Majority Leader Bill Frist
said he would support an amendment to the Constitution barring gay marriage in
the United States. He wants to muck up the Constitution with his special brand
of intolerance because, as the Tennessee Republican said, marriage between a
man and a woman “is a sacrament” reflecting our traditional “Western
values.”
Putting aside the inappropriateness of Frist’s desire
to park his religious sacraments in our civic documents, he is right when he
says that rules keeping gay Americans from having their families formally
recognized and protected by law reflect traditional values. They follow many
other beloved national traditions that have been translated into law, such as
segregation, antimiscegenation, limits on contraceptive use and on women from
entering certain professions. We in the West have spent quite a bit of
lawmaking energy telling others how to live their personal lives, though I
think it is about time we dropped that particular “value” from our
repertoire, don’t you?
Justice Antonin Scalia’s spluttering dissent in Lawrence
vs. Texas, the case that struck down a Texas law prohibiting
homosexual sodomy, repeats Frist’s theme on the fall of Western
civilization. It is full of dire predictions about the Gomorrah that this
nation will become if legislatures are no longer able to pass morals laws.
Scalia even expresses fear for the future sustainability of laws banning
masturbation and fornication—leading one to wonder whether he lives in this
century.
Despite Scalia’s fulminations, the near-term
consequence of Lawrence is not going to be the court-ordered
establishment of same-sex marriage. The majority ruling by the
Reagan-appointed Justice Anthony Kennedy made clear that the case “does not
involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter.” What is far more likely
is that gays and lesbians will begin to get a fairer shake in questions of
adoption, foster care, and custody and visitation rights to their children.
If moral disapproval of gay relationships can no longer
be the basis for adverse government action, then the kinds of rantings found
in an opinion by Alabama Supreme Court Chief Justice Roy Moore, denying a
custody request by a lesbian mother, would no longer pass as valid
jurisprudence. Last year, Moore—who was just slapped down by a federal
appellate court for refusing to remove a mega-ton monument of the Ten
Commandments he had installed in the Alabama Supreme Court building—said in
a concurring opinion that “common law designates homosexuality as an
inherent evil, and if a person openly engages in such a practice, that fact
alone would render him or her an unfit parent.”
In varying degrees that attitude has been reflected in
rulings around the country. A 1996 case out of Florida stripped a lesbian
mother of residential custody of her daughter, giving it instead to the
father—a man who had served 8 1/2 years in prison for murdering his first
wife.
Florida is also in court defending its Anita
Bryant-provoked prohibition on gays adopting children. The state is standing
by the 1977 law even as it employs gays as foster parents and notes there are
3,400 children in foster care for whom it can’t find adoptive parents.
The state is arguing before the 11th U.S. Circuit Court
of Appeals that the ban should remain because there is “a legitimate
governmental interest in expressing community disapproval of homosexuality in
the context of child rearing,” according to the state’s brief.
But that won’t cut it anymore. Lawrence said
this type of bigotry may no longer find common cause with the law.
In particular, the ruling recognized the ancillary harms
caused by the continued presence of sodomy laws, even when the laws themselves
were rarely enforced. “When homosexual conduct is made criminal by the law
of the state, that declaration in and of itself is an invitation to subject
homosexual persons to discrimination both in the public and in the private
spheres,” Kennedy wrote.
His ruling tells moralists-in-robes to leave their
intolerances at home.
Frist, Scalia and other purveyors of the nanny state may
believe the Lawrence case represents the abandonment of traditional
values, but in fact it has breathed new life into far more vital American
principles—those of freedom, autonomy and limited government. These are the
core Western values to which our Constitution subscribes. No tinkering
necessary.
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