The sodomy decision: Liberalism supreme and triumphant

The Supreme Court’s decision in the Texas sodomy case, Lawrence v. Texas, is even worse than I had thought. According to an erroneous early report, the Court had declared that a state could not prohibit behavior for a homosexual couple that was allowed for a heterosexual couple. In fact, while the Court did indeed raise the equal-protection argument, it declined to decide the case on that ground, because, as the Court put it, that would have left open the possibility that a state could outlaw both homosexual and heterosexual sodomy, thereby avoiding an equal protection challenge. Instead, resorting to the mystical and elusive “right of privacy” going back to Griswold v. Connecticut and Roe v. Wade, the Court issued a decision that, at least in respect of private conduct, had a much wider reach than if it had used an equal protection analysis. Declining to establish an explicit right of sodomy, the same right it had rejected 17 years ago in Bowers v. Hardwick, the Court declared that any intimate relationship or behavior between consenting adults in private falls into the protected zone of privacy that the Court had created out of thin air in Griswold.

This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. 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.

Complementing and supporting its declaration of an absolute right to private consensual behavior, the Court also rejected Bowers’s reliance on the traditional Western condemnation of sodomy as a basis for anti-sodomy laws. While moral disapprobation of homosexual conduct is not a trivial concern, said the Court,

[t]hese considerations do not answer the question before us…. The issue is whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law. ‘Our obligation is to define the liberty of all, not to mandate our own moral code.’

So there you have it. The Judeo-Christian morality of Western and Christian civilization, which goes back millenia, and which as recently as 1986 was still treated as a legitimizing basis of our laws, has now been officially stripped of any authoritative role in our society as it pertains to personal and sexual conduct. The only authoritative principle is the right of consenting adults in private to do whatever they like. Thus the unelected judges of the Supreme Court have taken the central credo of modern liberalism—do what you will, so long as it’s consensual—and made it the supreme law of the land. They have overturned existing tradition and existing legislation, and replaced them with their own tradition and legislation, from which there is no appeal. The libertarianism of liberalism, and the totalitarianism of liberalism, are part of one phenomenon.

Posted by Lawrence Auster at June 27, 2003 05:26 PM | Send

David Frum is right that this decision is a disaster that will likely lead to same-sex marriage.

Significantly, Kennedy’s opinion is full of talk about “automony,” “expression” etc. The Supreme Court is now fully on the side of the homosexual movement and “expressive individualism.” It has nothing to do with “what you do in your own bedroom is your own business” as its advocates will describe it.

Posted by: Steve Jackson on June 27, 2003 6:37 PM

You are right. The reasoning of Kennedy is quite frightening and will be a source of much mischief in the future. I listen to the tape of the APA symposium on removing paraphilias (various deviant sexual behaviors – voyeurism, pedophilia, sadomasochism, etc) from the diagnostic lexicon. The deviants repeatedly questioned the APA decision. There was a sense of it’s our turn now since homosexuality was removed 30 years ago. The leaders of the APA could not give a reasoned response. Interestingly, Judge Scalia noted that unlike legislatures (and medical organizations), judges must carry principles to their logical conclusions. Scalia states:

“One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, …Do not believe it.”

Don’t expect gay marriage to be the end of this line of reasoning. People will be lining up saying, “It’s my turn!”

Since the Court now has an “obligation is to define the liberty of all, not to mandate our own moral code”, the following statement by Kennedy and the reference to minors gets my vote for the most disturbing comment.

“In Carey v. Population Services Int’l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.”

Could the logic of the Court extend consent beyond adults.

Posted by: TCB on June 27, 2003 9:03 PM

That quote of Scalia’s is very VFR! What he’s saying is, the people acting through their representatives are capable of making the unprincipled exceptions that keep liberalism from taking society off the cliff; but that judges, who are more beholden (at least formally) to rational principles, are required to carry through the logic of suicidal liberalism to the last jot and tittle.

This would also seem to connect with Mr. Kalb’s theme that liberal society must become increasingly rational, bureaucratic, and run by experts. As it does so, it becomes less and less capable of making unprincipled exceptions, and so far more rigid and fragile.

Posted by: Lawrence Auster on June 27, 2003 9:17 PM

Also, just a couple of thoughts about what this decision implies and doesn’t imply.

A. On one hand, I do see it as implying the legalization of prostitution, of adult incest, of drug use, so long as the behavior is private and censensual.

B. However, I do not see it as leading, as some fear, to the legalization of homosexual marriage, adultery, bigamy, polygamy. Those things have to do with the public, official status of marriage, not with merely private behavior in one’s home. Ditto gays in the military, since the forbidden “don’t tell” aspect is by definition public not private.

Of course, I’m not saying that society may not be moving toward the items in group B as well. It’s just that I don’t see those things as emerging from this particular decision, since this decision appeals to the right of privacy. However, if the Court issued a future decision pertaining to sexual conduct or homosexual rights that was based on equal protection, then it seems to me that all the items in group B would then come into play.

I cannot convey the experience of this week with these two historic Court decisions. I can’t think offhand of anything in our lifetime that compares with it. It feels like a body blow. Our country has been changed in some fundamental way.

Posted by: Lawrence Auster on June 27, 2003 9:33 PM

Mr. Auster states: “However, if the Court issued a future decision that was based on equal protection…”

But you noted also that the issue of equal protection was raised — only rendered academic for the insidious reason you also noted. But having invoked it at least in passing, it seems to me that this door has been cracked open sufficiently to make this a very worrisome possibility.

In this case, equal protection was only ‘overlooked’ so as to broaden the extent of the damage. Even if this decision does not technically provide a legal basis for homosexual marriage, it still lays a necessary, or at least a significant, foundation to take the next ‘logical’ step toward it, since the formerly illegal activity entailed therein can no longer be proscribed.

Posted by: jtl on June 27, 2003 9:46 PM

”. . do what you will, so long as it’s consensual”

I recall an old “Calvin and Hobbes” cartoon about that. Calvin considered this general sentiment and said,”It’s the basic belief of every six year old”.

Seriously, if liberalism is the triumph of indulgence then it seems more than ever before, hard times are where we’re going eventually. It will be a crash landing. Maybe we get to choose if it’s a soft crash or a hard one. Maybe. But after the crash, we need to remember that conservatism is the necessary doctrine of survival during hard times, and is from those ashes we may rise again. Christianity was built the first time on the ruins of the Roman Empire.

Posted by: Gary on June 27, 2003 9:47 PM

“Do what you will, so long as it’s consensual.”

Perhaps a better formulation of this would be: “Do what you will, so long as you will it.”

Posted by: Lawrence Auster on June 27, 2003 9:52 PM

Also, Joel (JTL), thanks for supplementing my analysis. I think you could well be right.

Posted by: Lawrence Auster on June 27, 2003 10:04 PM

I’m not sure how “gay marriage” can be avoided now.

Saying there’s something amiss with homosexuality is no longer a legitimate state interest. The Court based the decision on “due process” rather than “equal protection” because the latter might leave open the possibility that there was something wrong with the conduct. That would make possible the horrors of discrimination — including, one would suppose, differential treatment of homosexual and normal relationships. Also, the full legitimacy of intentionally sterile unions has been established since the mid-60s.

All that being so, what’s the justification for treating same-sex and opposite-sex unions differently? As the Court said, “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

I must say these cases didn’t shock me as much as Roe v. Wade did. Still, reading Justice Kennedy’s opinion drove home how alien and inhuman official moral thought has become.

Posted by: Jim Kalb on June 27, 2003 10:47 PM

I believe seven out of nine Justices are Republican-appointed. The often promoted idea of “Conservative” GOP presidents appointing “Conservative” Supreme Court Justices has never happened no matter how many justices Republicans appoint.

Partly, this is because all candidates have gone to the same “elite” schools. Also, when they get on the court they feel the urge to make decisions that will garner favorable notices from the press.

Posted by: David on June 27, 2003 11:00 PM

LA wrote: “That quote of Scalia’s is very VFR! What he’s saying is, the people acting through their representatives are capable of making the unprincipled exceptions that keep liberalism from taking society off the cliff; but that judges, who are more beholden (at least formally) to rational principles, are required to carry through the logic of suicidal liberalism to the last jot and tittle.”

I reject outright the notion that judges are somehow more beholden, or more faithful, to rational principle than voters who may disagree with them. True, it’s entirely possible for the people to pass contradictory laws. However, it’s also possible for the people to pass laws which are at odds with a particular judicial philosophy or governing world view, but which are yet internally consistent with some other world view. A good example is the ruling we’re now talking about. It’s consistent with a particular judicial philosophy and world view, yet had the people the power to say otherwise, their determination would not be therefore somehow irrational simply because they disagree with the Court. Their decision would simply rest upon a different base; a different set of principles. Their decision would not necessarily be, as is claimed in the above quote, unprincipled.

But I suspect this is what Mr. Auster meant…

Posted by: Bubba on June 28, 2003 12:22 AM


The idea is that it’s not possible to be consistently liberal (i.e., believing in tolerance, non-judgmentalness, human equality, the equivalence of all values, etc. etc.), and live successfully in this world or even survive at all, whether we’re speaking of an individual or a society. Yet the values actually needed for living cannot be articulated or defended in terms of liberalism itself. From the point of view of liberalism, those values are unprincipled, hypocritical, irrational. Liberalism requires this irrationality in order to function.

You could also do a search for “unprincipled exception” in other threads where I’ve talked about the idea in various contexts.

Posted by: Lawrence Auster on June 28, 2003 1:45 AM

LA wrote: “From the point of view of liberalism, those values are unprincipled, hypocritical, irrational. Liberalism requires this irrationality in order to function.”

Ok. That’s what I figured you must have meant. But what you actually said was ambiguous, so I jumped on it in order to elicit a clarification. Mucho thankso.

Posted by: Bubba on June 28, 2003 5:17 PM

I take it Jake from is back.

Posted by: Bubba on June 28, 2003 7:30 PM

I suspected as much myself. Ahhh, the liberal mind.

The word ‘nihilism’ seems appropriate.

Posted by: Joel on June 28, 2003 8:37 PM

For anyone wondering what Bubba and Joel are referring to in the previous two comments, someone, probably Jake, whom I excluded from the site yesterday for his increasingly insulting and completely non-substantive comments, sent another harrassing comment under a different name, which I’ve since deleted. Another poster, Edwin Weller, whom I had also excluded after indulging his hostility and ranting for far too long, wrote to me asking how he could get his posting privileges back. I told him—I thought reasonably—some things about his behavior he could change, and suggested that if he waited for a couple of weeks probation and then indicated a willingness to change his attitude, I would consider letting him post again. His response to my offer of clemency was to start sending a bunch of harassing comments under a variety of false names, including my own. After I deleted them, he e-mailed me again asking in a wounded tone why I was deleting his comments!

Perhaps we shouldn’t be surprised that there are more and more sociopathic and otherwise unhinged people around, when the top level of our society is attacking the very intellectual and moral foundations of our civilization, as seen in the two Supreme Court decisions this past week. It’s surprising that there aren’t more unhinged people.

Posted by: Lawrence Auster on June 29, 2003 12:41 AM

When we’ll see the truly unhinged emerge is in the increasingly unlikely event that the Supreme Court or the Congress ever act to reverse the holdings of Roe, Grutter or Lawrence. Then the armies of the aggrieved, those who believe they have a “reliance interest” in those decisions, will really be out howling. Somehow I think politely pointing out that we are merely restoring a long-standing constitutional status quo ante will not placate them! HRS

Posted by: Howard Sutherland on July 1, 2003 3:44 PM
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