I’m working through my thoughts on the Supreme Court judgment concerning Texas vs. Lawrence. It is unjust, I think, that sodomy laws are applied to homosexuals and not heterosexuals. It is dangerous, however, to formulate and enact civil policy and laws based on emotion or to justify based on individual wants or thoughts. I understand that there are many who believe any kind of homosexual expression is immoral, and for the sake of social stability that the people’s representatives have the right to enact laws that support the public’s notion of morality. The problem is that the majority in a pure democracy can enact laws that do unjustly discriminate – it is the tyranny of the majority. Another example of the tyranny of the majority is the treatment of blacks in this country, or laws that prohibited inter-racial relationships and marriage. We live not in a pure democracy; we live in a republic where elected representatives legislated on behalf of their constituents. This offers some protection to the whims of change and the fickleness of public opinion – the tyranny of the majority. Within our system, the courts offer a counter-balance to the legislature, which can still enact on behalf of the public, unjust laws.
However, the Constitution has nothing to say about sodomy laws, whether homosexual or heterosexual. To find a Constitutional right to acts of sodomy is not plausible, it is establishing law centered on the morality held by the nine justices of the Supreme Court. I agree, I think, with Justice Thomas’ statement that if he were a legislature, he would overturn the law, but as a justice, he would not because under this issue as it stands it is the responsibility of the legislature make law, not the Supreme Court. It is not the responsibility of the Supreme Court, or the court system in general, to create rights where rights were not honestly established in the Constitution. I think a more correct justification for overturning the Texas law would have been through equal protection under the law, as Justice O’Connor cited, rather than a right to privacy. Does a legislature have the right and with the support of public to pass laws establishing moral behavior. Yes, we do it all the time. Honestly, we do, that is what law is.
While I benefit from the ruling, I think it would have been better to continue our advocacy with the public in order to change their attitudes, which would eventually be reflected in legislation and the overturning of unjust laws. Having a court force the issue on an unwilling public is not the best way to honestly cause change in peoples’ individual beliefs and feelings. The problem is that sometimes with some issues the length of time to cause the change in public attitudes, and thus laws, to end unjust laws unequally applied to all is the defining issue. If the Supreme Court had not acted concerning race laws, we may still have states with laws denying blacks equal access and equal treatment under the law. So, here we are with sodomy laws and the Court’s ruling.
More to come, and possibly a total change of opinion. The fact is we pass laws to regulate morality all the time. To deny that is ridiculous. Is appealing to the courts for redress the best course to take? It may be the most expedient, but is it the best? I’m not sure at this point.
comments? e-mail me