Are Gays Winning the Culture Wars?

Critics and supporters of gay rights alike agreed that Lawrence and Garber v. Texas, the U.S. Supreme Court sodomy case decided today, will be far-reaching. "The liberty protected by the Constitution allows homosexual persons the right to make this choice," declared Justice Anthony Kennedy, writing for the majority in striking down a law against homosexual sex.

It was the sweeping nature of the decision that led most conservatives to view this decision as monumentally damaging. Justice Antonin Scalia criticized the "invention of a brand-new 'constitutional right'" and said this "effectively decrees the end of all morals legislation." In fact, he writes, the Court has, "has largely signed on to the so-called homosexual agenda.... The Court has taken sides in the culture war." Read the full opinion and dissents here.

Conservatives fear that this is but one step on the path to other victories--especially in light of Canada's recent decision to make gay marriage a de facto right and the Episcopal Church's probable selection of a openly gay bishop. Conservative gay writer Andrew Sullivan happily agreed: "Each day now, I can feel freedom dawning in this land again. The struggle of so many for so long is beginning to come true. What a privilege, what a joy, to be alive to witness it."

Below are excerpts from court opinions, amicus briefs, and reactions to the ruling that demonstrate this case's place in the broader issues of gay rights, gay marriage, and protection of the family.

Justice Kennedy's Majority Opinion
"Adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the constitution allows homosexual persons the right to make this choice....

"The condemnation has been shaped by religious beliefs, conception of right and acceptable behavior and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law."

Justice Scalia's Dissent

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct....

"One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in public and in the private spheres.' It is clear from this that the Court has taken sides in the culture war, departing from the role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their businesses, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home....

"So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal...

"Let me be clear that I have nothing against homosexuals,or any other group promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -or, for that matter, display any moral disapprobation of them -than I would forbid it to do so.

"What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change....

"Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions,insofar as formal recognition in marriage is concerned."

Other Critical Reactions
Gary Bauer, President of American Values
"Once again, an activist Supreme Court has substituted its judgment over the decisions of the citizens of Texas who, through their elected representatives, had made a moral and legal judgment about behavior. The decisions that the citizens made were well within the traditions of Western Civilization and are now overtaken by an activist judgment of the Supreme Court.

"The White House should take note of the fact that four of the six justices making this decision were appointed by Republican Presidents. A conservative, pro-family President must be extremely careful to make sure that any appointments he makes will defend traditional values and not aid in the assault against the family and reliable standards of right and wrong."

Read Bauer's full statement.

Continued on page 2: »