By Ed Vitagliano | Journal News Editor

Most people have never heard of Lawrence and Garner v. Texas, but after the U.S. Supreme Court rules on the case sometime before the end of June, chances are it will become as famous as Roe v. Wade, the high court’s 1973 decision legalizing abortion.

Lawrence and Garner v. Texas deals with the issue of homosexual sodomy – admittedly an issue that most people rarely, if ever, think about. However, the core principles of the case are intertwined with related issues like human sexuality and marriage, making it a potential earthquake in American culture.

The case has been moving up the appellate ladder for more than four years. In September, 1998, Houston police were summoned to the apartment of John Geddes Lawrence, 55, under the impression from a phone call – later determined to have been fake – that an intruder was in the apartment with a gun. When officers entered the apartment, they found Lawrence and Tyrone Garner, 31, both homosexuals, in a back bedroom engaging in sodomy. Both men were arrested under a Texas law which makes homosexual – but not heterosexual – sodomy a crime.

“Not since other watershed decisions – such as those affecting prayer in public schools and abortion – has a case come before the U.S. Supreme Court carrying such dramatic potential to reshape American culture,” said Stephen M. Crampton, Chief Counsel for the AFA Center for Law & Policy (CLP).

The CLP has filed a brief in support of the Texas sodomy law, and the case will be argued before the U.S. Supreme Court on March 26. (See AFA Journal, 3/03.)

An orderly natural world
Interestingly, the nation’s highest court will be revisiting in Lawrence and Garner v. Texas the same general issues dealt with in a previous Supreme Court case. In Bowers v. Hardwick (1986), a 5-4 high court majority upheld Georgia’s sodomy statute.

That narrowest of decisions, however, pitted two culturally distinct appraisals of morality and law against each other – and in fact provides a clear lesson about what has become known as the culture war.

Sadly, however, since 1986 the more traditional Judeo-Christian views which prevailed in Bowers have been steadily eroding in our culture, in favor of the more postmodern views of the minority in that case. Should the Supreme Court in Lawrence take an opposite view than it did in Bowers, that would mean – quite remarkably – that in the span of only 17 years, the notion of law and morality inherent in the Judeo-Christian worldview had been decreed, by unelected judges, obsolete.

Most sodomy laws have already disappeared anyway. In 1960, all 50 states had such laws on their books – now only 13 states do. However, the repeal of these laws – either by state legislatures or judges – indicates that the statutes represent a worldview that is rapidly being abandoned in favor of postmodern relativism. Sodomy laws derive from an older recognition of an orderly natural world, reflecting an intelligent design and, thus, purpose within nature, called natural law.

Brian Fahling, senior policy advisor and senior trial attorney for the CLP, said, “The laws of nature thunder loudly against the notion that two men ought to be having sex with each other. The Texas law upholds that self-evident reality.”

Legislating morality
Natural law was also traditionally used to help reinforce the moral views of the people – and, in turn, both were embodied in man-made laws by duly authorized legislatures.
However, marching in lock step with the movement to overthrow natural law has been the demand that laws be stripped of their moral components
“A lot of times people will say, ‘Well, you can’t legislate morality,’” Fahling said. “But you can. You must. You can’t intrude on the heart and mind, of course, but what you can do is proscribe conduct that is injurious to society at large – even if it’s one or two individuals consensually engaging in a particular sexual act. Law has tremendous power because it makes a profound statement about who we are as a people.”

In fact, one of the arguments against Georgia’s sodomy statute in Bowers was that the only foundation for the law was the consensus that homosexuality was immoral.

“This is said to be an inadequate rationale to support the law,” said Justice Byron White, who penned the majority decision in Bowers. “The law, however, 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.”

Justice Harry Blackmun took the opposite view, however, in writing the dissent for the minority in Bowers, and it is a view which has a growing number of adherents less than two decades later.

“Certainly, some private behavior can affect the fabric of society as a whole,” he admits, but then proceeds to assert, without proof, that the Supreme Court could rest assured that the moral fabric of the nation would not be affected negatively “merely because some private sexual practice which they abominate is not punished by the law.”

Crampton said, “It changes our culture tremendously to assert that heterosexual and homosexual sex are moral equivalents. For one thing, it completely destroys the belief that marriage should be between one man and one woman. And when that concept is invalidated, then the entire concept of what a family is is altered as well.”

Crampton also brushed aside the contention of homosexual activists that a society should not legislate morality. “The homosexuals in the Texas sodomy case are, in essence, legislating morality. They’re just saying that our traditional morality is wrong, that the old morality has passed away, and ought to be replaced with their version, which is based on personal autonomy devoid of any corporate sense of right and wrong.”

Moreover, those advocating for the repudiation of sodomy laws sometimes admit their core objection: that the morality reflected in such laws are rooted in the Judeo-Christian religious tradition.

In its editorial on the subject, “Does government have a duty to legislate morality?” The Atlanta Journal-Constitution praised the Georgia State Supreme Court for striking down that state’s 182-year-old sodomy statute in 1998. The paper’s editors said, “Georgia’s sodomy law fell, then, on a question of privacy, but it arose, like many other statutes, out of a notion of morality grounded in religious belief – the concern about ‘sinful behavior.’ … All [sodomy laws] have their origins in biblical injunctions of one kind or another.”

Blackmun seemed particularly provoked by “[t]he theological nature of the origin of Anglo-American anti-sodomy statutes.” He said in Bowers: “The assertion that ‘traditional Judeo-Christian values’ proscribe the conduct involved … cannot provide an adequate justification” for a law. “That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry.”

The ‘private sphere’
If Blackmun was anxious to scrub away the dual influences of natural law and moral consensus from the facade of man-made laws, with what principle would he have replaced it? The answer was a simple precept: What a person does in the privacy of his own home is no one’s business.

Citing a previous Supreme Court decision, Blackmun said in Bowers, “‘Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.’” That principle invalidated the Georgia sodomy statute, he said, because it “denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity.”

Moreover, Blackmun argued, there is no right or wrong way of choosing lifestyles. He quoted a previous Supreme Court case which dealt with the beliefs of the Amish concerning mandatory public school attendance for their children: “There can be no assumption that today’s majority is ‘right’ and the Amish and others like them are ‘wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”

That a justice of the nation’s highest court could equate the Amish decision to home school their children with two men committing homosexual sodomy is breath-taking. Blackmun illustrated the postmodernist tendency to lump all lifestyles together without allowing for any moral distinctions between them. After all, once an individual rejects design and purpose in nature, and once it is demanded that laws have no moral ingredients, then there exist no absolute, transcendent standards by which decisions can be judged.

The majority in Bowers, however, saw the issue differently. Simply saying that homosexual sodomy should be legal since it is “voluntary sexual conduct between consenting adults” is arbitrary, White said. “[I]t would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.”

Fahling said Blackmun’s arguments are the same as those being made by the lawyers for the two homosexual men in the Lawrence case. “They are emptying this so-called ‘right of privacy’ of all moral content. They say, ‘Well, you should be allowed to choose.’ But choose what? You have to examine choices, not in a moral vaccum, but in the context of what, precisely, you are choosing,” he said.

A vanishing moral consensus
However, Fahling says the problem is that our nation is developing a “moral vacu-um” in the public marketplace of ideas.

“In the abstract we can affirm that certain sexual acts, which fall outside the marriage bed, are inimical to the moral welfare of a nation and should be proscribed by law,” he said.

“Unfortunately, any moral consensus we may have had on human sexuality is vanishing.”
In such a cultural climate, the survival of sodomy laws seems unlikely. “In a society without a moral consensus, it is difficult for laws rooted in morality to exist,” Fahling said. “You can have laws which can help protect an existing moral consensus, but you cannot use laws to create one.”

Today people seem more likely to agree on a morality that embraces relativism than one that accepts traditional views as normal. “The hearts of the people have changed,” Fahling said. “If there is an actual moral consensus, it is beginning to coalesce around Justice Blackmun’s concepts of almost absolute individual freedom, devoid of any societal disapproval.”

Fahling’s comments carry a tragic air. When the Supreme Court upheld Georgia’s sodomy law in 1986, the country’s cultural norms were certainly more traditional. Thus the majority in Bowers stated firmly, “We are unwilling to start down that road” of tossing aside laws criminalizing immoral sexual conduct.

However, 17 years later, cultural conservatives are anxiously wondering whether the worm has turned.

The Texas sodomy statute at issue in Lawrence and Garner v. Texas will not only be determined by the U.S. Supreme Court’s views on morality, but by its views regarding federalism and the creation of constitutional rights.

The principle of federalism guided the creation of our republic more than 200 years ago, when the original 13 states voluntarily granted some of their powers to the newly fashioned national government. In exchange, the states were given the assurance – spelled out in the Constitution – that they would maintain their own, inviolate spheres of authority.

However, conservatives are concerned that the Supreme Court, if it invalidates the Texas sodomy statute, would be overstepping its constitutional authority.
“The United States Supreme Court doesn’t have any lawful authority to strike down this statute in Texas,” said Michael DePrimo, litigation counsel for the AFA Center for Law & Policy. “The states have always been allowed to legislate in areas left untouched by the Constitution.”

In fact, in Bowers v. Hardwick, the 1986 case in which the U.S. Supreme Court upheld Georgia’s sodomy law, the majority opinion was firmly rooted in this view of federalism. Chief Justice Warren Burger said the case was a question that concerned “the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.”

An equal concern, DePrimo said, is that by striking down the Texas law in Lawrence, the Supreme Court would essentially be creating a new constitutional right to practice sodomy. “The amendment process spelled out in the Constitution presents a clear-cut mechanism for providing new rights for the people should they desire them,” he said. “The Supreme Court must not simply create those rights out of thin air.”

That is precisely what the majority said 17 years ago in Bowers. The Court said it was not “inclined to take a more expansive view of our authority to discover new fundamental rights imbedded” in the Constitution, adding that the Supreme 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.”