American Proscenium

Giving Aid and Comfort to the Enemy

The Supreme Court’s ruling in Lawrence v. Texas has created panic and confusion among conservatives.  They want to support the three conservative justices who dissented from the Supreme Court’s ruling that struck down Texas’ sodomy statute, but they don’t quite know why.  Justice Scalia, they say, must be wrong in thinking that a rational distinction can be made between sexual acts practiced by the heterosexual 97 percent of our society and acts practiced by the homosexual three percent: “The Texas law says that gays cannot do what non-gays can do.”  Furthermore, the Texas law could not be defended with states-rights arguments, since the Court had already assumed (in Bowers, 1986) the power to meddle in such matters.

This was, in essence, the reasoning (if it can be called that) of Justice Anthony Kennedy in writing the decision.  Arguing from the basis of “equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty,” Kennedy concludes that “moral disapproval of a group cannot be a legitimate government interest.”  Sodomy statutes, he argues, are not just about sex: “When 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.” If Kennedy thinks intimate...

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