Cover Story


The Supreme Court waited for the last moment before summer adjournment to issue its most controversial cultural and political decisions. It struck down a Texas anti-sodomy law-swinging open the courthouse door to further legal attacks on marriage and community standards-and decided affirmative action and pornography cases. The high court provided a powerful reminder of the high stakes involved in judicial selection. With potentially three openings to fill, President Bush may have an opportunity to rein in judicial lawmaking

Issue: "Supreme warning," July 5, 2003

HUGS IN THE CASTRO DISTRICT, relief in Ann Arbor, panic in public libraries across the country: If it's the end of June, the Supreme Court must be turning laws-and lives-upside-down.

Wrapping up another difficult session, the nation's highest court last week dropped a series of legal bombshells, guaranteeing fallout that will last for decades. From gay rights to affirmative action to censorship, the nine justices issued perhaps their most controversial decision in a rare Thursday session-just before they high-tailed it out of town. In Lawrence vs. Texas, a majority of six justices took "the most radical outcome possible," according to Tom Jipping, a family activist and veteran court-watcher who was in the chamber when the decision was announced. "They basically declared there is a constitutional right to homosexual sex. Adding to the radical approach, they rejected the whole idea that legislatures can enforce community standards."

In an unusual move that indicates extreme displeasure, Justice Antonin Scalia read aloud his dissent from the bench. He ridiculed the 6-3 majority's logic, saying the ruling amounts to "an unheard-of form" of legal decision making "that will have far-reaching implications beyond this case." Justice Scalia-writing for Justice Clarence Thomas and Chief Justice William Rehnquist-predicted the ruling will mark the "end of all morals legislation" and will leave traditional marriage laws on "pretty shaky grounds."

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At issue was a Texas law banning "deviate sexual intercourse with another individual of the same sex." Officials in Austin insisted the law simply reflected the community standards of their conservative, Southern state, but gay-rights groups argued the state could not criminalize actions by homosexual couples that were permitted for heterosexual couples.

While lawyers for John Geddes Lawrence and Tyron Garner, the homosexuals who challenged the law, high-fived in the court, pro-family groups openly considered the "far-reaching implications" of which Justice Scalia warned. But Glen Lavy of the Alliance Defense Fund took a broader-and more broadly alarming-view. "It's hypocritical if we focus only on homosexual behavior," he says. "Before God, all sex outside of marriage is a sin.... So while we're disappointed, this is no worse than having a state legislature say, 'We're no longer going to criminalize adultery or fornication.' It's just further evidence of the decay of the moral fabric of our country."

It's also further evidence of the decay of judicial restraint. "It's quintessential judge-made law," said Mr. Lavy. "The court substituted its view of morality for that of the state legislature. They created a right to any adult consensual sex without limitation, as far as I can see." He expects to see future legal challenges against laws banning prostitution and incest: "It's sex outside of marriage between consenting adults. I don't see how you can prosecute it, based on this decision."

Mr. Lavy takes at face value the majority opinion in Lawrence that the decision creates a no legal precedent that would presage a high-court reversal of state marriage laws. Justice Sandra Day O'Connor wrote that "other reasons exist to promote the institution of marriage," so marriage laws are safe for now.

Justice Scalia, however, said his colleague's assertion is valid "only if one entertains the belief that principle and logic have nothing to do with the decisions of this court. Many will hope that, as the court comfortingly assures us, this is so."

As the ramifications of the Lawrence ruling began to sink in, conservatives expressed almost as much surprise as outrage. Seventeen years ago, a more liberal court had ruled in Bowers vs. Hardwick that states could indeed regulate private sexual behavior. How could the Rehnquist court, with seven justices appointed by Republican presidents, overturn that decision?

Although the current court is often more restrained than it was under the previous two chief justices, that hasn't translated into any sort of consistent or predictable decision making, especially on the thorny social issues that consume so much of the justices' time. The same court that guaranteed student prayer groups the right to use public-school facilities then turned around and banned prayers at public-school football games. The same court that upheld multiple restrictions on abortion also upheld the legality of the most gruesome abortion procedure of all. And the same court that blocked two earlier attempts at cleaning up cyberspace voted just last Monday to allow Congress to require filtering software on computers at federally funded public libraries.

"There is no pattern of consistently coming down on the side of judicial restraint in these hot-button constitutional cases," says Mr. Jipping. "When you look at decisions like striking down the partial-birth-abortion ban or disallowing prayer before football games, you see a lot of activist decisions by this court. Even the Boy Scout case, which was very simple in point of law-should a private organization have the right to determine its message and membership-was split 5-4.... So I think it's difficult to come up with any single description for this group of justices."


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