Has Homosexuality Always Been Incompatible With Military Service?
Posted on 04/11/2006 4:20:39 PM PDT by Conservative Coulter Fan
How should parents react when a son or daughter announces that he or she is "gay?" The Supreme Court has adopted a principle that, by its own logic, suggests that the parent should be indifferent, that the question of sexual "oreintation" is nobody's business but the son's or daughter's, and that any contrary attitude is nothing more than bigotry. That answer is not only morally perplexing but has absolutely no plausible connection to the Constitution the Court claims to be interpreting. The Court's answer, however, has everything to do with the modern liberal attitude toward sexuality.
That answer was given in Lawrence v. Texas, which effectually made homosexual sodomy a constitutional right by means of an argument that owes nothing to law but everything to a subsophmoric moral argument.
Viewed narrowly, what was as stake in Lawrence was the state's criminal statue prohibiting homosexual sodomy between men. Lawrence and garner were seen engaged in sodomy in an apartment by a police officer who was lawfully on the premises. Fined $200, they took the case, ultimately to the Supreme Court. The Court majority, in an opinion by Justice Kennedy, struck the statue down as a violation of the liberty said to be guaranteed by the due process clause of the Fourteenth Amendment.
The majority opinion continues the tradition of incoherence in these matters. Although it purported to apply a clause ratified in 1868 (and taken verbatim from the fith Amendment, ratified in 1791), the majority opinion said, "we think that our laws and traditions in the past half century are of most relevance here." In 1955, for example, the American Law Institute, an unofficial organization of lawyers, stated that its recommended Model Penal Code did not advocate or provide for :criminal penalties for consensual sexual relations conducted in private." In 1957, in the Wolfenden Report, a committee established by the British Parliament recommended the repeal of laws punishing homosexual conduct, and ten years later Parliament complied. The puzzle is twofold. There is no explanation of why recent events of the last fifty years are relevant to the meaning of a constitutional amendment over one hundred and thirty years old, nor why why recommendations about legislation in the United States or Britain should affect the meaning of the United States Constitution.
Even more puzzling was the Court's statement:
Of even more importance,...The European Court of Human Rights considered a case....[in which] [a]n adult male resident in Northern Ireland alleged that he was a practicing homosexual who desired to engage in homosexual conduct. The laws of Northern Ireland forbade him that right....The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights.
This was said to show the falsity of the premise that the claim to a right to engage in homosexual conduct was insubstantial in Western Civilization. Justice Kennedy also cited the trend in American states to decriminalize homosexual conduct.
None of this should be taken as serious constitutional analysis. Whatever the ALI and the Wolfenden Report said, however the Court of Human Rights sitting in Strasbourg decided under its law, and however many states decided to decriminalize homosexual sodomy, the fact remains that Texas had a right to makes its own moral judgments unless something in the federal Constitution denied that right. And it is here, in the attempt to muster a constitutional rationale for its decision, that the Court majority opinion floundered most abysmally.
The effort began, amazingly, with a repetition of the same mystery-of-life passage from Casey mentioned earlier, as though it had some discernible meaning:
In explaining the respect the Constitution demands for the autonomy of the person in making these choices [about marriage, procreation, contraception, family relationships, child rearing, and education], we stated as follows:
These matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autnomy, 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.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do.
These words defy explanation just as they defy any attempt to guess what the concept of constitutionally guaranteed liberty might cover. This passage, discussed in chapter 6, is at best a blank slate on which anything may be written at the pleasure of the justices. The wonder is that this empty incantation, despite having been endlessly ridiculed, should now be relied upon once more as the opening gambit in what purports to be a constitutional argument.
Justice Kennedy went on, with the approval of four colleagues, to quote Romer's conclusion that the provision of the Colorado constitution denying localities the right to make homosexuals a specially protected class, along with racial minorities, by claiming that "the provision was 'born of animosity toward the class of persons affected' and further that it had no rational relationship to a legitimate government purpose." This denies the right of government to enact the judgments of its citizens that some behavior is immoral and harmful. That is not a proposition that can be applied across the board; moral judgments are the stuff of legislation.
The opinion went on to offer an utterly unpersuasive assurance. This case, the Court said, "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." That means that Lawrence does not decide the question of same-sex marriage as a constitutional right. But, of course, it does. The principle of radical personal autonomy upon which the case rests necessarily means that the state many not deny homosexual couples a marriage license. We are entitled to suspect, indeed to be certain, that this is precisely what the Court majority is leading up to.
It is abundantly clear, then, that a majority of the Supreme Court no longer considers itself a constitutional court--one highly respected federal judge said to me that Lawrence v. Texas means the Constitution is simply gone. Instead, the Court majority has made itself into a secular papacy, the final authority on matters of faith and morals. We may, therefore, assess its performance on those grounds as well.
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I often wonder if my taxes would be lower if conservative politicians and figureheads spent just a little bit more time focusing on tax reform than they do on gay reform. Sodomy laws? How is that even a priority? Those kinds of laws overstep the bounds of a limited government that most conservatives should support. Let's focus on the things that should matter, shall we people?
The whole liberal agenda is to erase the judeo-christian moral code from society. Then they don't have to feel guilty for anything. Is constitutional law all we need...not moral law?
He is still owed many apologies.
It's the exact reason we don't have tax reform. Bill Frist has tabled it. But that sure doesn't stop him from having time to vote on gay marriage this summer! No tax reform, but he's always got time for a gay marriage amendment or a flag burning amendment. It's time for focus on things that matter, and a judiciary that makes its own laws is certainly in need of reform, but sodomy laws are out of line and should not be on the agenda.
A wonderful piece by Judge Robert Bork!
A good post. Let's ponder it:
You and I are concerned about the growth of government, and taxes, the welfare state, etc. We see the sodomy stuff as less important, even if we think that the left is trying to destory our culture throught it, and even if we don't care what two men do in their own home, we don't want it pushed on our kids.
So what to make of the culture wars? We could say "screw it" and cave in - taxes and government size are more important. The other argument would be that we can't win the tax and spending war without a majoritym, and by standing up for traditional values we win congressional seats. After all, I think it is the gay marriage ban in Ohio that pushed Bush over the top in '04.
The problem, of course, is that what has happend is that that while we have done well on the culture wars and gained power from them, the GOP has been the worst spenders in history.
Does that mean that we abandon the culture wars? I don't know. They are important to me, however, I think that ultimately the size of government is the most important issue. I.E. it is a large government that not only reduces wealth, but also solidifies in everyones mind that it is ok to use the government to push personal preferences.
Take a look at Tom Delay, the once conservative hero...once W was elected he abandoned the spending and welfare issue in favor of the culture and pork issues to try to create a permenant GOP majority. The result was bad. Once he decided to retire, he turned into his old self (if you heard him on Savage the other day).
So what do we do? Do we give up the gay marriage and similar issues in order to focus on spending?
If the GOP used its power to reduce spending, I would be all for the culture wars to preserve that power.
However, the GOP has not done that. Instead, we are left with two parties: Both favor big government. mOne believes in traditional values, the other is run by a bunch of perverts.
What is the answer? I don't know.
Try DU.
Marriage Protection and sodomy laws are two separate issues!
And the majority of people in this country feel very strongly the a marriage amendment IS important and matters very much!
Not that THIS matters, but taxes are indeed influenced by homosexual rights and hate crimes laws! Which begin with all the issue of homosexual marriage.
If homosexual activists let things alone, no one would be worrying about sodomy laws or "gay" marriage.
They're the ones who brought the subjects up, or out of the closet. Do you advocate letting them have their way with society, then?
I think the view is sickening, because at best the GOP have talked a lot of talk on the culture war while not really following through...of course there isn't any point debating with people who lack sustained argument. One could easily just make the case that the GOP perhaps has just betrayed their base altogether...not just one the side of "small government," but what really ticks me off about people like you is that you'll let the culture go down the toilet, but I someone like me want give an inch in demanding radical restructuring of government...the complete end to social welfare, the elimination of income tax...the abolishment of unconstitutional federal departments...and so forth. I think that perhaps I'm going to just try the CP party, because I'm fed up with it.
Huh? Please quote what I said that you are objecting to.
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