Lex Et Ratio a Flawed Performance
| Jurisdiction | United States,Federal |
| Citation | Vol. 2003 No. 09 |
| Publication year | 2003 |
September 2003 - #8. Lex et Ratio A Flawed Performance
On June 26, 2003, the United States Supreme Court overturned by a six-to-three margin the Texas sodomy law and with it the Court's own 1986 decision in Bowers v. Hardwick.1 The decision has been hailed by liberal groups as a long-overdue recognition of the privacy rights of homosexuals and the beginning of the end to legal discrimination on the basis of sexual orientation. Conservatives, on the other hand, including Justice Antonin Scalia writing in dissent, have chided the Court for creating rights where the Constitution does not grant them and for, once again, intervening in affairs best left to the political process in the individual states. In addition, conservatives agonize over the implications of Lawrence for issues such as gay marriage - they see a slippery slope down which the Court has pushed us, leading to the complete subversion of the institution of marriage.2
The Lawrence decision brings to the fore a number of key issues regarding the role of law and the courts in American democracy. It is a flawed performance, building castles in the air and making assertions where it should offer arguments. Nevertheless, the Court has gotten it right - much like the championship team that wins ugly. While it is too early to know the practical consequences of the case, beyond the elimination of sodomy laws in the handful of states that still have them, Lawrence may well have implications for constitutional jurisprudence of lasting significance. In this essay I want to examine some of those issues - and reflect on some of those implications.
What the Court Decided . . . And What It Did Not
Despite the cries of doom from the right, the Lawrence Court chose not to take the path that would have more directly raised the concerns expressed by those doomsayers. The Court declined to find the law unconstitutional on equal protection grounds - a basis urged by many of the amici in the case, adopted by Justice O'Connor in her concurrence, and roundly criticized by Scalia in dissent. Nor was homosexuality, or homosexual sex, recognized as a fundamental right. Such rulings would have lent a good deal of support to those who would legalize same-sex marriage as well as numerous other practices.3 Instead, Justice Kennedy chose to resolve the case "by determining whether the petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment."4
The deep meaning of sodomy statutes, in Kennedy's view, has little to do with sex and far more to do with human dignity. Sodomy statutes, he says, are demeaning, interfering unjustifiably with the liberty all citizens have a right to enjoy.5 In Bowers the Court had described the issue at stake as whether the "Constitution confers a fundamental right upon homosexuals to engage in sodomy . . ."6 According to Justice Kennedy, however, this misstates the crucial issue. The Bowers Court, he tells us, failed "to appreciate the extent of the liberty at stake." 7 Sodomy laws raise questions that transcend mere sexual conduct. To reduce the issue to one of sex "demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse."8 Sodomy laws touch "upon the most private human conduct, sexual behavior, and in the most private of places, the home."9 As a result, they "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."10
Kennedy's focus, therefore, rests not upon sexual behavior but upon the "dignity" of "free persons." He describes the liberty interest at stake in terms fully consistent with the language of twentieth century therapeutic society: "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."11 So the liberty recognized by the Court is something on the order of a right to form and express a close personal relationship with another. That close personal relationship may involve all sorts of expressions of intimacy, some of them sexual - and, it seems to follow from what Kennedy says, the state may not prohibit some of these forms of expression while privileging others. While the Court does not state explicitly that people have a right to engage in sodomy (including homosexual sodomy), as long as the sodomy takes place within the confines of a close personal relationship it must be legally unobjectionable.
The Sweet Mystery of Life and Other Fancies
Justice Kennedy, however, does not leave his definition of liberty at that. He has a much larger, much more transcendent vision of the liberty interest at stake. In Planned Parenthood of Southeastern Pennsylvania v. Casey - a case that upheld the right to abortion first enunciated in Roe v. Wade - Justice Kennedy first enunciated the much-pilloried "mystery of human life" description of the liberty protected by the Due Process Clause.
These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment. At the heart of liberty is
the right to define one's own concept of existence, of meaning, of the universe,
and of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.12 Writing in dissent in Lawrence, Justice Scalia finds this passage preposterous: "I have never heard of a law that attempted to restrict one's 'right to define' certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined 'concept of existence, etc.,' it is the passage that ate the rule of law."13 Scalia is right on both counts.
The Court - or at least Justice Kennedy - has chosen to build jurisprudential castles on the most shifting of sands, if not on thin air. What does it mean to say that the heart of liberty is the right to define one's own "concept of existence, of meaning [is that one's concept of meaning, or just meaning?], and of the mystery of human life"? What is a "concept of existence"? "Meaning" of what? What would be an example of a concept of "the mystery of human life"? None of this really means much of anything; it is rather just the airiest, fluffiest nonsense. Surely liberty means something more than this meaningless twaddle. Of course, no one can be said to have liberty in any sense worth having if he or she lacks the mental ability to think about life beyond the mundane "what should I do next?" level. Such a person simply lacks one of the fundamental capacities required for a full human life. But surely that is not what Justice Kennedy is talking about, since laws prohibiting abortion or sodomy do not deprive citizens of mental capacities. Similarly and more significantly lacking is the person who, due to strained economic circumstances, does not have the leisure to reflect upon his or her life. But, once again, the sorts of economic disadvantage that prevent someone from living a more contemplative life are not implicated by sodomy or abortion laws. So, once again, this cannot be what worries Justice Kennedy.
What of the suggested link between sexuality and the definition of one's "concept of existence, of meaning, of the universe, and of the mystery of human life"? Is it not a mistake to imagine that when one gives way to the sensual impulses that strike us all, we are "thinking" about anything? The person caught up by passion, especially sexual passion, is simply not doing anything cognitive; certainly such a person is not "defining" anything so highfalutin as a "concept of existence, of meaning, of the universe, and of the mystery of human life." Seduction takes one out of one's mind; it does not plunge one into metaphysics. At times of sexual heat, we are generally not thinking about anything, or at least anything beyond how to satisfy our partner or ourselves; orgasm is not a mental event.
Further, with what I expect are rare exceptions, we do not fashion our "concepts" of the meaning of life out of our sexuality. Indeed, sexuality itself may very well be a historical construct of relatively recent vintage.14 The preoccupation with sex that so characterizes contemporary Western culture has its roots in the secular individualism that followed in the wake of the eighteenth-century Enlightenment. Even today, with all of the attention paid to sex, it is still relatively rare to see sexuality placed at the heart of human identity and meaning. Psychological bestsellers, Catholic apologetics, and "gay pride" literature aside, most people do not define themselves and their lives solely or even primarily in sexual terms. Prostitutes may define the meaning of their existence in terms of their sexual behavior (though even this is doubtful), but the rest of us, I wager, do not.
We should be wary, in addition, of defining the liberty protected by the Due Process Clause in terms of sex and the relationships within which it occurs. It is precisely this reduction of freedom to satisfying our animal passions that brings American culture into disrepute. The freedoms of which we should be most proud have little to do with what we do in bed and much, much more with what we do in the public square. Without doubt, a connection exists between the two spheres. But the liberty our nation was founded to protect - indeed...
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