Posted on 12/11/2003 8:55:39 AM PST by Happy2BMe
Supreme Validation of Sodomy, Part II Editor’s note: This is the second in a two-part analysis of the Supreme Court’s Lawrence v. Texas decision, handed down in June. Part one can be found in the August 2003 issue of Family Research Report. § The Lawrence v. Texas decision was hailed by homosexual advocates as a monumental victory for the gay rights movement. And rightly so. As discussed in our last issue of Family Research Report (FRR), the Supreme Court established a fundamental new ‘right’ to sodomy in its ruling. It also did something else at least as devastating: the majority opinion broadly dismissed morality or historical precedent as a rational basis for law. In doing so, it established its dictatorship. In fact, leaving the strongest evidence ‘in the file drawer’ did much more than just make a win almost impossible for the upholders of the anti-sodomy law. By not intentionally linking Christian prohibitions of homosexuality with the strongly negative empirical outcomes of homosexual behavior, the justices — guided by the modern mindset that science is the final arbiter — could indeed feel justified in discounting morality as a basis for legislation. After all, if a moral standard written thousands of years ago, now held only by ‘religious fanatics’ even against the ‘weight of scientific opinion,’ was the only justification that could be provided, how strong an argument could it really be? “The central holding of Bowers [that sustaining morality constitutes a compelling state interest] has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.” Justice O’Connor added that: “Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.” “Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. ‘After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.’” “A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct association with that class runs contrary to the values of the constitution and the Equal Protection Clause, under any standard of review.” ‘Personhood’ the Key The key phrase here is “homosexual persons.” If someone’s true identity stems from and is defined by what they do sexually, then some of the Court’s rationale makes a kind of sense. How can we logically discriminate against or legally demean someone on the basis of their skin color? A person’s skin color is harmless to others and inherent to one’s identity. Likewise, homosexuality is portrayed as essentially harmless (or no more harmful than heterosexuality) and as an essential, if not inherent, component of a “gay person’s” identity.
Failure of the Pro-Family Leadership
Clearly, the Lawrence decision was a tremendous blow to those who seek to uphold our nation’s traditional values and morality. But it was also a lesson in how conservatives as a whole, and the pro-family movement in particular, failed to recognize fundamental changes that have occurred in the arenas of law and public policy, and consequently failed to champion the kinds of arguments and evidence that might have led the Supreme Court to a different outcome.
Both the brief submitted to the Court by the State of Texas and the host of amicus briefs defending its sodomy law concentrated on the right of the State to regulate such behavior on the basis of long-standing legal precedent and moral standards. Specifically ignored by these briefs were the public health consequences of consensual adult same-sex sex — responsible for the deaths of over a third of a million Americans from HIV alone. While the briefs featured moralizing, the strongest evidence in support of traditional thinking — public health ramifications — was simply set aside. The actual events, and the health risks, that took place between the two men in Lawrence were never mentioned. Only their ‘right’ to do whatever it was they did was addressed.
Absent any concrete, scientific or medical reason for banning sodomy, it all became a matter of individual taste or preference. This is why the Court could say “There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”
Apparently, not strong at all according to the Court: “In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”
What stunned so many conservatives about the Lawrence v. Texas decision was its sweeping nature and tone. Yet the seeds of Lawrence and its rationale have been brewing for some time. Note, for instance, that the Court referred to “gay persons” or “homosexual persons” on more than one occasion, including the statement that 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. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
The crucial point to recognize here is that pro-family activists and elements within Christianity have aided and abetted this very interpretation. At first this was not the case. In the late 1800s, homosexual activists tried to make themselves “a people” out of whole cloth because of their homosexual behavior. At that point, homosexuality was little more than a godless-religious movement on the outer fringe. But then, at the turn of the century, psychiatry went along with the notion, albeit by adding the notion that “homosexuals” had a “homosexual condition” stemming from familial dynamics which “impelled” them to do what they did sexually.
By 1973, psychiatry had largely abandoned the Freudian ‘mother-father-child interaction model’ of what ‘made’ homosexuals, but kept the ‘condition’ as part of “homosexual personhood.”
Nevertheless, even as it was disappearing in psychiatry, the old Freudian model was turning up in Christendom. For the past several years, Focus on the Family and the National Association for the Research and Therapy of Homosexuality (NARTH) have toured churches, radio, and TV promoting the notion that there are “homosexual persons” with a “homosexual condition” and that traditionalists must overcome their “homophobia.” Even the Vatican has written about “homosexual persons” (though it has not yet to our knowledge explicitly asked Christians to abandon their ‘homophobia’).
Making homosexuals “people” who are expressing their ‘essence’ — instead of individuals who are injuring society by their sexual choices — is an important first step in absolving homosexuals of blame. Once pro-family leaders ceded “personhood” to those who engage in a certain act, they went a long way toward making what homosexual practitioners do ‘OK.’ Further, by criticizing the church for its ‘homophobia,’ they set the table for Walmart’s recent decision to give “diversity training” to its employees (i.e., extolling the goodness of homosexual activity). For if even the church has been too harsh on homosexuals, what organization is exempt?
What Should Have Been Done
The rallying cry of pro-family leaders against homosexual behavior should have been “public health.” Public health — both in the fact that the practice of homosexuality spreads disease and that it endangers children — should have been included in the discussions about homosexuality within the church over the past decade. It should also have dominated the arguments about the Texas sodomy law. But instead of public health, only ‘moral arguments’ were put forth, statements like ‘the Bible says its wrong,’ or ‘historically homosexuality has been considered wrong.’ And even these moral arguments were tempered by the confusion wrought by discussions of “homosexual persons” and “homophobia“ within Christian circles.
ONLY public health arguments stand a chance to persuade the courts or the legislatures. Morality and tradition — as basis for argument in the public square — are dead and have been dead for about a decade in the courts. Public health, on the other hand, has a history of trumping ‘personal liberty.’ It may or may not have trumped personal liberty in the Lawrence decision — but it stood the only chance. And pro-family leaders, by not emphasizing public health arguments and by sowing confusion about the homosexual issue among Evangelicals, definitely made the Lawrence decision more possible.
The decision by pro-family leaders to ‘stick to morality’ rather than switch to ‘public health’ was made long ago. Perhaps persuaded by gay-friendly academics that the weight of scientific evidence was against them or poorly trained in how to evaluate empirical data or maybe simply intimidated by a research establishment clearly hostile to traditional morality, scientific arguments on the traditional side have generally been ignored in favor of the oft-repeated mantra that ‘homosexuality is wrong.’
In truth, the past two decades have seen an abundance of empirical data piling up that demonstrates that those who engage in homosexuality are disturbed, anti-social, and dangerous.
Lost Opportunity
And there is another twist. Amazingly, in 1996, under the openly pro-homosexual Clinton administration, the Centers for Disease Control (CDC) conducted the largest national random sexuality survey ever done with regard to homosexuality. FRI had the data analyzed and ready to publish in book form by 1999. Over the next two years, FRI then approached almost all the major pro-family ‘players’ for help getting the book published.
We had a ‘killer’ study — one conducted by the CDC, one that could not be argued around or ignored, one that put public health front and center. Those who engaged in homosexuality were less productive on the job, more frequently into drugs and booze, more frequently criminal, had more sexual partners, took more sexual risks, you name it. In short, this CDC study validated almost everything ever said about the harm to public health caused by homosexuals.
Unfortunately, due to the nature of the subject matter in our politically correct climate, the publishers willing to print and distribute the book wanted $200,000 up front in either cash or pledges of books that would be purchased. $200,000 is of course no small change. As a small organization, it was not something FRI could afford on its own. But here was a book and a study that could radically change the gay rights debate.
With this need in mind, we approached a number of pro-family organizations that could help, including Coral Ridge Ministries, headed by D. James Kennedy, Jerry Falwell, and Don Wildmon‘s American Family Association. Concerned Women for America, Family Research Council, and Focus on the Family were also approached (James Dobson was personally informed about our project and need at least twice). Nevertheless, each of these leaders or the organizations they head said that, while they thought the project was a good idea, they would not chip in to pay for it.
No Chance At All
A great and glorious opportunity was lost between 1999 and 2001. The results of this CDC study could have stood in the way of this year’s Lawrence decision. But they haven’t been published. The pro-family leaders’ decision was made. The Supreme Court could, of course, have ignored the CDC findings, but a public health argument based upon them would have given traditionalists a ‘fighting chance.’ By depending upon ‘moralistic’ and historical arguments, they had no chance at all.
Remainder of article is HERE.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.