As the French say, even a blind pig can sometimes find a truffle. And even the conservative Rehnquist court can sometimes see the light.
They sure did, at the end of the 2003 session: Voting 6-3 to strike down Texas’ anti-sodomy law as unconstitutional and reversing a 1986 ruling that upheld a similar statute in the state of Georgia.
In last week’s Lawrence v. Texas decision, the court proved that times can change and the law can and must change with it. Seventeen years ago, one could still argue that states may legally outlaw private sexual activity between two consenting adults of the same sex. Today, said the nation’s highest court, that argument is bogus. It violates the right of privacy and the basic principle of equal protection under the law.
Bravo. Legal scholars already hail Lawrence v. Texas as one of the two most important opinions of the last 100 years. Emory University’s David Garrow told Newsweek the decision is arguably more significant than Roe v. Wade and right up there with the landmark Brown v. Board of Education ruling of 1954.
Chicken Little conservatives immediately cried: “The sky is falling!” Once gay sex is OK, they shrieked, gay marriage is next – or even worse. In the absurd words of Pennsylvania’s Sen. Rick Santorum, commenting on the same case last April: “If the Supreme Court says you have the right to consensual [gay] sex within your own home, then you have the right to bigamy, you have the right to polygamy, and you have the right to incest, you have the right to adultery. You have the right to anything.” Polygamists were insulted.
Only Rehnquist, Scalia and Thomas were stupid enough to buy Santorum’s argument, which shows how out of touch with reality they and fellow so-called “social conservatives” are.
The law is all about making distinctions. Killing a person in self-defense is justified, for example, but killing for pleasure is not. So sex between consenting adults, gay or straight, is now justified. But that doesn’t give you a license to drag into your bedroom your neighbor’s goat, pig or cow.
Nor will there be any sudden rush to endorse gay marriage. Some states may decide to follow Vermont’s lead – or Canada’s – and embrace gay unions. I hope they do, but I doubt it. But whatever they decide won’t be determined by the Court’s decision in Lawrence v. Texas.
That’s what social conservatives, blinded by homophobia, don’t understand. This case was about neither sex nor marriage. It was about equal rights, especially the right of privacy. And the court’s ruling is not just a victory for gay rights. It is, above all, a great victory for freedom – for all Americans.
“The petitioners are entitled to respect for their private lives,” wrote Justice Anthony Kennedy. Sounding more like a libertarian than a conservative, he continued: “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Speaking for the majority, Kennedy defined what happens between consenting adults behind closed doors as “a realm of personal liberty which the government may not enter.”
Now, I admit, I’m biased. I’m a privacy nut. But putting my own bias aside, it seems to me that Kennedy’s words are an affirmation of liberty that every American – liberal, conservative or libertarian, gay or straight – should applaud.
Remember the facts of the case. After receiving a false report from a disgruntled neighbor that a man was “going crazy” in the next apartment, police broke in and discovered nothing but John Lawrence and Tyron Garner having sex. The two men were arrested, fined and convicted.
Again, in response, the court didn’t say gay marriage is OK. What the court did say is that a nation founded on God-given rights and the equality of all Americans cannot tolerate cops breaking down bedroom doors and arresting two consenting adults, gay or straight, simply for having sex. It is impossible to read the Constitution and come to any other conclusion.
By reaffirming the right of privacy, the Supreme Court has finally caught up with the wisdom of Lady Patrick Campbell, an Englishwoman famous for uttering the last and best word on human sexual conduct. “It doesn’t matter what you do in the bedroom,” she declared, “as long as you don’t do it in the streets and frighten the horses.” Amen.