By: Michael Francisco

10 August 2003 Where Will Lawrence Lead?: Examining the Supreme Court Decision.

The marriage debate has rapidly caught fire in the American political and academic communities. This lurking lion of American social politics officially left its den when the Supreme Court pronounced their majority opinion in Lawrence v. Texas (LINK). Make no mistake, this case was a blockbuster Supreme Court decision on sodomy laws that made novel precedent about homosexual rights.

If Lawrence were merely about anti-sodomy laws then why would Marriage suddenly be the topic of debate? Because the Supreme Court set new legal precedent in Lawrence, the case could soon apply to more than sodomy laws. Christians concerned about marriage as the God ordained institution between one man and one woman should understand how significant this Supreme Court decision. Unless something is done to prevent it, Lawrence looks to be another dangerous decision that will come to fruition with future decisions.

In the past the highest court in land has used seemingly miniscule issues to set precedent that was later used to expand or take away much more significant rights. In 1965 the Supreme Court released a similar precedent-setting decision about a seemingly inconsequential aspect of social policy. Griswold v. Connecticut (LINK) declared that state laws banning contraceptives sold to married couples were unconstitutional. The problem with Griswold was not that it overturned contraception laws, but that it created a new area of constitutional protection - the 'right to privacy' found in the penumbras of the enumerations of the constitution. (LOOKUP JUSTICE BLACK….) It was that specific precedent the Court used a mere eight years later when it declared abortion laws unconstitutional in Roe v. Wade (LINK).

Just as Griswold set the stage for Roe, it looks as if Lawrence has set the stage for a future decision entrenching homosexual rights such as marriage. Same-sex lobbying groups are busy celebrating while conservative political groups have been left scrambling. Unless Christians act to prevent the Supreme Court from drawing conclusions out of the logical bases set forth in Lawrence, mandating same-sex marriage for example, America will almost certainly see more extreme decisions in the future.

Although the Lawrence decision only directly affected the anti-sodomy laws that a few states still have on the books, a host of legal issues will surely arise in the near future because of this decision. Gay marriage, gay adoption and strong anti-discrimination rights for homosexuals in the workplace, to name a few.

Justice Scalia's dissent demonstrates the great significance of Lawrence. Scalia deliberately emphasized his dissent by reading it in full from the bench - a rarity for the Supreme Court. Scalia pointed out that laws against bigamy, same-sex marriage, incest, prostitution, adultery, bestiality and obscenity are "called into question by today's decision [Lawrence]." The broad and sweeping legal principles invoked by the majority logically lead to all such laws being called into question. Because anti-sodomy laws were overturned on basis of the "rational review" there seems to be no legal barrier for the court to overcome

The Supreme Court rarely directly rejects previous Supreme Court decisions, especially recent ones, and sets new legal precedent. Lawrence, however, explicitly rejects almost all of the 1986 Bowers v. Hardwick decision, where sodomy laws were upheld. Many of the same arguments in favor of overturning anti-sodomy laws were made in the Bowers case. The majority then held that:

to claim that a right to engage in such conduct [private, consensual sodomy] is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

The majority in Lawrence embraced the 'facetious' arguments and held almost the exact opposite! Astonishingly, a mere 17 years later, the court in Lawrence wrote:

Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.

With that, the court did not merely gut the Bowers decision, but it dismissed the case entirely. (For a thorough examination of the historical claims disputed be the two decisions read Justice Scalia's dissent LINK).

Not only did the Supreme Court reverse previous Supreme Court precedent, but they also did so without explicitly elevating homosexual acts to the status of "fundamental right". At first glance this appears to be positive for those who oppose raising homosexual acts to fundamental right status, but as Scalia points out, this move merely allowed the court to ignore the specific legal scrutiny connected with fundamental rights - thus making their job of creating new protections for homosexuals even easier.

In what has been recognized as a potentially paradigm-changing move, the court protected the homosexual acts as "an exercise of their liberty" rather than "fundamental rights." This reasoning is entirely new for the Supreme Court. Some libertarian legal scholars have praised the reasoning of liberty and "rational-basis review" as a 'presumption of liberty.' The idea is that liberty should be presumed, and the government must justify infringements of liberty to the court. Such a legal review departs almost entirely from textual concerns, historical reasoning, and moves the bench even closer to being an un-elected, supremely powerful legislative branch. If the Supreme Court follows Lawrence up with more 'rational basis' review decisions this case about anti-sodomy laws could become as significant as the 14th Amendment being used to apply the Bill of Rights to the states. Lawrence does not guarantee such expansion, but at least Justice Scalia seems to suspect as much.

Justice Scalia has criticized this 'presumption of liberty' and rational-review criteria invented by the Lawrence decision. He rightly pointed out that this new legal precedent and rational might be extended in the future to many types of laws. By nature, laws restrict liberty. Scalia wrote:

Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. (LINK)

A general proclamation that laws must justify in the eyes of the court such limitations greatly empowers an already activist court. Armed with a new principle of judicial review, this decision will end up being "a massive disruption of the current social order" as Scalia titled it.

Barring a major reformation of the Supreme Court, Christians are increasingly likely to see social laws so long respected in this nation overturned by five un-elected Supremes. Perhaps President Bush will have the opportunity to appoint justices with higher respect for the Constitution; perhaps not. Perhaps laws could be passed which sufficiently strengthen traditional marriage. Such laws may just be cast aside by the court, as the Religion Freedom Restoration Act (RFRA) was. Perhaps a constitutional amendment will be passed defining marriage, such as the Federal Marriage Amendment, but will enough states ratify such an amendment? There are many possible responses to the Supreme Court decision in Lawrence, none of which are guaranteed to fix the problem.

Future decisions following in the silent footsteps of Lawrence may turn out to be a second Roe, infuriating many Christians but leaving them powerless to prevent it. Griswold was a decision about birth control, hardly a cause Christians viewed as worth fighting for. Likewise Lawrence is about anti-sodomy laws, another cause Christians don't seem willing to fight for. As history proves, without the legal reasoning of Griswold, there could not have been a Roe v. Wade. The legal reasoning of Lawrence is every bit as dangerous as Griswold. Let us not make the same mistake twice.