Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Friday, May 15, 2009

On Anagnorisis and Ephors: Part I

In his Poetics, Aristotle analyzes the genre of tragic drama. He describes the moment in a tragedy where the hero recognizes or becomes aware of some truth about his identity or actions, and that awareness or sudden "epiphany" accompanies the reversal of the situation in the plot, what is known as the peripeteia. That moment of discovery is called the anagnorisis (ἀναγνώρισις), a Greek term meaning discovery or recognition. See Poetics 10, 11. A vivid example would be King Oedipus's realization of the truth that he is both married to his mother and guilty of patricide, or Othello when he becomes aware that Desdemona was not unfaithful to him. The anagnorisis entirely transforms the character and the plot. It is as though he is finally confronted with the truth. A scriptural anagnorisis may the Gallicantu (the "Cock's Crow") in the Gospels (Matthew 26:69-75, Luke 22:54-62, Mark 14:66-72, and John 18:15-18, 25-27), where Peter hears the cock crow and becomes aware of his denial of the Lord.

In the tragic drama of our country's recent cultural demise, and its reflection upon our political and legal institutions, I have had an anagnorisis or two. One particular vivid anagnorisis involved my learning of the United States Supreme Court's decision in Lawrence v. State of Texas, 539 U.S. 588, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In Lawrence, a majority of the United States Supreme Court justices struck down the sodomy law in Texas as unconstitutional. It constituted a direct reversal of its decision in 1986, in Bowers v. Hardwick, where the Supreme Court held that a Georgia anti-sodomy law did not offend the U.S. Constitution. The reversal was a shock to my naturally conservative constitution, and it confirmed in me the already growing feeling of doubt about the institutional integrity of our judiciary at the highest level. It was when I learned of the Supreme Court's volte face about whether the right to homosexual sodomy was a fundamental right under the U.S. Constitution that I realized that we are not materially ruled by law. Though the forms have stayed in place, the substance of what's going on is something different altogether. Whatever's going on in the Supreme Court chambers, it ain't law. In practice it appeared to me that we are governed by the--often stupid, superficial, and tendentious--opinions of unelected men and women--modern day ephors--who wear black robes.

That homosexual sodomy should be a fundamental and protected right under the U.S. Constitution is without legal justification, if intellectual honesty and legal analysis--and not sophistry--is to govern dispositions of legal controversies. Under the common law that we inherited from the English, and consistent with the teachings of the natural law and our Jewish and Christian cultural capital, sexual activity was seen as legitimate, and thus a protected right, only within the marriage contract. By the unanimous consent of our traditions--cultural, religious, and legal--sexual activity outside of the marriage was considered immoral, and thus, subject only to prudential considerations, a valid subject matter for restriction or criminalization. Because homosexual acts were seen as being particularly repugnant and so obviously against the natural moral law, they were euphemistically referred to as “crimes against nature.”

The about face of the Supreme Court from Bowers v. Hardwick to Lawrence v. Texas merits review, as it helps us see, in addition to the wholesale collapse of legal reasoning by some on the Supreme Court, the utter rejection of the Natural Law by the Supreme Court. It also shows the disingenuous nature of the arguments adopted by those who would reject the Natural Law. Because both Christianity and the Natural Law informed our institutions and laws and still play an attenuated and attenuating basis for them, a judge who wants to avoid them must engage in legal somersaults and verbal legerdemain. Some of them look pretty foolish. We will start with a review of the straightforward analysis of Bowers v. Hardwick, and then turn to the inanities of Justice Kennedy in Lawrence v. Texas. In our next segment, we will analyze how Justice Kennedy, who wrote the majority opinion in Lawrence v. Texas, "reasoned" his way out of the obvious.

In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the Supreme Court of the United States upheld the sodomy statute of the State of Georgia against constitutional challenge. Hardwick had been charged in August 1982 under Georgia criminal law for consensual homosexual sodomy. (Actually, the district attorney did not even consider taking the charge to the grand jury for an indictment, but this was a test case for the ACLU.) Hardwick (represented by the lawyers of the ACLU) challenged the law in Federal district court, and the suit was dismissed. On appeal, in a divided opinion, the entire 11th Court of Appeals reversed and remanded, holding that the Georgia statute violated Hardwick’s fundamental constitutional rights. The Supreme Court granted writ of certiorari, and, in a 5-4 decision, reversed the Court of Appeals. In so doing, it held that the Georgia statute was constitutional.

The opinion of the Court was delivered by Justice White, and he was joined by Chief Justice Burger, and Associate Justices Powell, Rehnquist, and O’Connor. Associate Justice Powell filed a concurring opinion, as did Chief Justice Burger. Justice Blackmun filed a dissenting opinion, and was joined by Justices Brennan, Marshall, and Stevens. Stevens also filed his own dissenting opinion, in which Justices Brennan and Marshal joined. I will discuss the majority opinion and Justice Burger's concurring opinion. I will save commentary on Blackmun's histrionic ravings in his dissenting opinion for another time, if I get to them at all.

Justice White straightforwardly framed the issue before the court as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the man States that still make such conduct illegal and have done so for a very long time.” Id. at 190. (In his dissent, Blackmun accused Justice White of being too fixated with homosexuality, which is a rather odd accusation given that this was the issue before the Supreme Court!) Justice White found no prior precedent in the Supreme Court jurisprudence relating to the right to privacy, and rights relating to marriage, family, and the rearing of children to support Hardwick’s argument that the right to engage in homosexual sodomy had been implicitly recognized in prior case law. Id. at 190-91. Justice White also observed the obvious: that there was no express provision in the Federal Constitution that addressed this issue. Though the Constitution did not address this issue, that alone did not foreclose the question if the right was considered “fundamental.” (This is a legal reference to the Natural Law or our inherited cultural and legal traditions which are implicit in the historical understanding of the U. S. Constitution at the time of its ratification.) Justice White noted that there were two tests generally recognized that help identify a "fundamental right." First, a fundamental right is one that was “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [they] were sacrificed.’” Id. at 191-92 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288 (1937)). Another formulation for a fundamental liberty would be one “‘deeply rooted in this Nation’s history and tradition.’” Id. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (opinion of Powell, J.)). It was “obvious” to the majority of the Supreme Court in 1986 that homosexual sodomy could not be considered “fundamental” under either test. Id. Any legal scholar would know that sodomy was against the common law we had inherited from England and adopted in the United States, and was prohibited by statutes which existed and which were enforced during the times the U.S. Constitution and the 14th Amendment were ratified. The Supreme Court did not see fit to craft a “more expansive” formulation of what a “fundamental” right was so as to comprehend the homosexual sodomy within its auspices. “The Court . . . comes nearest to illegitimacy when it deals with judge-made constitutional law having no cognizable roots in the language or design of the Constitution.” Id. at 194. Indeed. Words that ought to be kept in mind when assessing the Court's reversal seventeen years later.

Hardwick also argued that if the homosexual sodomy was not considered a fundamental right, the Georgia statute criminalizing sodomy nevertheless was unconstitutional because it had no rational basis (the argument being that the presumed belief of the majority of the voters in Georgia that sodomy was immoral and unacceptable being not enough to give a rational basis to the law). The Supreme Court rejected the argument since it spread too far and wide and would virtually result in constitutional challenge to any law. “The law . . . is constantly based on notions of morality,” it tersely stated. If the fact that a law was based only upon the morals of the majority was sufficient to invalidate a criminal law, “the courts will be very busy indeed” handling all sorts of challenges. Id. at 196.

In his concurring opinion, Chief Justice Burger was even more to the point. He wrote “to underscore” his view that “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.” Id. at 196.
[T]he proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

Id. at 196-97.

In only seventeen years--about one-half a biblical generation--the Supreme Court was to reverse itself. In 2003, in the case of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), another constitutional challenge to statutes criminalizing sodomy made it to the threshold of the Supreme Court. In a 6-3 ruling, the Supreme Court overruled Bowers v. Hardwick and found that homosexual sodomy was a fundamental right under the Federal Constitution. How the black and white of Bowers v. Hardwick turned into the white and black of Lawrence v. Texas will be handled in the next post.

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