On Anagnorisis and Ephors: Part II

In our preceding post, we discussed Bowers v. Hardwick. We shall now turn to Lawrence v. Texas.

Lawrence and Garner were arrested in 1998, and, after being caught flagrante delicto by a Harris County policeman legitimately in a private residence in response to a weapons disturbance call, were charged with violating the Texas anti-sodomy statute. They pleaded no contest to the charge, were convicted, but challenged the statute based upon constitutional grounds. Eventually, their case came before the Supreme Court on writ of certiorari. The Supreme Court overruled Bowers v. Hardwick, essentially finding (without clearly saying) that sodomy should be treated as if it were a fundamental right under the Due Process clause of the U.S. Constitution. Justice Kennedy wrote the majority opinion, in which five justices (Justices Stevens, Souter, Ginsburg, and Breyer). O’Connor wrote a concurring opinion. Justice Scalia wrote a dissent, in which Chief Justice Rehnquist and Thomas joined. Justice Thomas also wrote a short dissenting opinion. In this post, I will focus on Justice Kennedy's opinion, and on Justice Scalia's dissenting opinion.

Justice Kennedy began his dismantling of Bowers by attacking the issue as framed by Justice White in his opinion. By formulating the issue as whether the U. S. Constitution confers a fundamental right upon homosexuals to engage in sodomy in Bowers, Justice Kennedy accused the Court of having failed to “appreciate the extent of the liberty at stake.” Id. at 567. Bowers' misapprehension of the issue “demean[ed] the claim [Bowers] had put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. None of this makes any sense because it confuses categories. Bowers involved the illicitness of certain acts, and there was no question before the court as to relationships. There was no dumbing down of anything, as Justice Kennedy states, and so his comparison is false. It was Justice Kennedy who was dumbing up the liberty interest at stake, making a statutory prohibition against sodomy—which is aimed at a prohibiting a certain act—a prohibition against a personal relationship. Kennedy was guilty of overstating or amplifying the right at issue. In his dissent, Justice Scalia observes this shift in formulation, and he discloses why the Court went way beyond the issue before it. He sees in it the seeds of a "dismant[ing of] the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marrage is concerned." Id.at 604 (Scalia, J., dissenting).

The next trick used by Justice Kennedy was to reframe the historical issue. Since it was plain that the traditional and historical restrictions against sodomy were monolithic, Kennedy had to resort to verbal prestidigitation to hoodwink his audience. He reframed the issue from being a prohibition of sodomy to being one of “homosexual conduct as a distinct matter.” Id. at 568. In analyzing traditional prohibitions against sodomy, the term “homosexual conduct as a distinct matter” is an anachronism. Since the “concept of the homosexual as a distinct category of person did not emerge until the late 19th century,” id., this deftly allowed Kennedy to ignore any history prior to the 19th century. The term “homosexual” is a bastard term formed by joining a Greek word homo (= the same) and a Latin term sexualis (=sexual). It is of relatively late origin, the first known use being by the Austrian-born novelist Karl-Maria Kertbeny, who published an anonymous pamphlet in German in 1869. When it made it into the English language, and, what is more important, the English legal language, would have been later. (The Merriam-Webster Online Dictionary puts down the origin as being 1892). This clever little device allowed Justice Kennedy to cover a lie with words that were technically accurate: “Thus early American sodomy laws were not directed at homosexuals as such . . . .” Id. It would be somewhat like stating that there have never been any tradition of laws against fraud and deceit because there has not been a law that ever used the term “fib” “as such.” Ultimately, the argument is absurd. If, under our traditions, all manner of sodomy—regardless of who was involved—was traditionally considered behavior subject to criminal sanction, then that necessarily included “homosexual” sodomy. The moniker used, and whether it included more than one group of actors, is irrelevant. Another way of looking at it is as follows. Our inherited traditions held that X, Y, and Z were subject to criminalization without falling afoul of the Constitution. Justice Kennedy argues since we are dealing with X, and not Y and Z, the fact that X, Y, and Z were considered subject to criminalization does not mean that X alone was. What kind of logic is that? As Scalia accurately observes: "Whether homosexual sodomy was prohibited by a law trageted at same-sex sexual relations or by a more general law prohibiting both homsexual and heterosexual sodomy, the only relevant point is that it was criminalized--which sufficies to establish that homsexual sodomy is not a right 'deeply rooted in our Nation's history and tradition.'" Id. at 596 (Scalia, J., dissenting)

Next, Justice Kennedy observes that enforcement of the anti-sodomy laws in the context of consensual sex between homosexual men, as distinguished from predatory sex, was rare. He also points to the various evidentiary standards that made prosecution in instances of consensual sodomy difficult. This "infrequency" of prosecution, Kennedy argues, "makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults." Id. at 569-70. Of course, all of this is beside the point. The point was not whether the laws were rigorously enforced or enforcement tempered on the grounds of prudence, prosecutorial discretion, or difficulty of proof. The point is, rather, whether there were laws at all, and whether such laws were part of our inherited traditions and therefore free of constitutional prohibition. "Surely that lack of evidence" of prosecution, "would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a 'fundamental right,' even though all other consensual sodomy was criminalized," Scalia scoffed in his dissent. Id. at 597 (Scalia, J., dissenting).

Then, in what must be characterized as the pièce de résistance of sophistry in this opinion, Justice Kennedy focuses on the "laws and traditions in the past half century," as being "of most relevance" to the issue of whether the Due Process Clause of the 5th and 14th Amendment included as part of its "liberty" the right to sodomy. Id. at 571-52. What the attitudes may have been since 1953 by a small cadre of law professors and foreign judges is absolutely and totally irrelevant to the meaning of the "substantive due process" under the 5th and 14th Amendment and the understanding of a "fundamental" right under the U.S. Constitution. To understand the meaning of the Constitution requires focus on the circumstances that confronted the framers and ratifiers of the 5th Amendment in the 1700s and the 14th Amendment in the mid 1800s. While the "emerging awareness" that sodomy should not be criminalized that Kennedy points to (assuming its accuracy) may perhaps be relevant to whether these statutes should be repealed through the democratic process, they have absolutely no relevance whether they ought to be repealed because the Constitution and mandates it. It would seem beyond cavil that what the American Law Institute thought in 1955, and what state legislatures have been doing since 1961, and what the British Parliament did in the 1960s, and what the European Court of Human Rights did in the case of Dudgeon v. United Kingdom in 1981 has nothing to do with what the meaning of the Constitution is. As Scalia caustically states in his dissent, "an 'emerging awareness' is by definition not 'deeply rooted in this Nation's history and tradition[s],' as we have said 'fundamental right' status requires." Id. at 568 (Scalia, J., dissenting).

It is with shoddy arguments such as these, that Justice Kennedy, writing for a majority of the Supreme Court, overruled Bowers v. Hardwick.

Finally, it is worth reviewing Justice Kennedy's preroration or coda and pointing out what can only be called its arrogance. Kennedy states:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Id. at 578-79.

What hubris! First, Justice Kennedy purports to have insights as to liberty that our founders did not have. They were "blind" to "certain truths," but he, as part of a "later generation," presumably one the American ephors, can now "see." Second, Justice Kennedy essentially admits that the people who drew up and ratified the clauses he was interpreting as a Supreme Court justice did not know of the right to sodomy ("Had . . . [they] known . . . they may have been more specific."). Impliedly, this is an admission by Justice Kennedy that the "liberty" he has just told us was found in the Fifth and Fourteenth Amendments is not to be found in these Amendments, at least if construed in their original intent. The Constitution does not "endure," it may be noted, but both it and the democratic process "erode" when justices invoke its text and dishonestly impute to those texts alleged freedoms and liberties that were never intended to be therein. This is not constitutional interpretation, but a travesty.

In summary, “liberty under the Due Process Clause,” according to the Court, “allows homosexual persons the right to enter into a homosexual relationship and engage in homosexual acts to make the “personal bond” more “enduring.” Id. This is grandiose language, involving the "liberty of the person ... in its ... more transcendent dimensions." Id. at 562.

(That the right to sodomy is "transcendent" is risible if it weren't so offensive. One can only guffaw at the suggestion that gives this dignity to vice. It seems unassailable that a person engaged in sodomy is involved in a particularly vulgar and paradigmatic "submundane" act. As an aside, one may snicker at the probably unintended pun of Justice Kennedy who suggests that homosexual sex would make homosexual relationships more “enduring,” since the etymology of the word endure comes from Anglo-French endure, which in turn comes from Vulgar Latin indurare, which means to harden.)

Though both the result and legal reasoning of Lawrence are questionable on the issue of the criminalization of sodomy, there is, as Scalia noted in his dissent, a far more ominous note attached to Lawrence. To Scalia, the majority opinion in Lawrence stated that the law before the Court had no rational basis because the State of Texas had no legitimate interest in prohibiting behavior thought to be immoral and unacceptable. "This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion.¨ Id. at 599 (Scalia, J., dissenting). In Scalia's perceptive view, Lawrence "effectively decrees the end of all morals legislation." Id. If the sexual morality of the majority does not present the state with a legitimate state interest that may be the basis of law, then laws against "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" have no basis. The majority of the Court, in deference to the "homosexual agenda," and taking clear sides in the "culture war," usurped the democratic process, and imposed, as if they were a "governing caste that knows best," a foreign law upon the people under the pretext of constitutional law. Id. at 602-03. More, according to Scalia, the irresponsible broadening of the rights in question makes it a foregone conclusion that homosexual marriage will be held to be a "fundamental right" under the U.S. Constitution.

Time will tell if Scalia predicted the ephorate aright.