When 19-year-old G.I.s were dying on the beaches of Normandy, in the jungles of Vietnam and in the deserts of Iraq, what did they think they were fighting for? What kind of America were they preserving?
Was it the America of free, strong families and communities, or was it a libertine culture in which pornography, abortion and homosexuality hold all the cards? Was it the America of Norman Rockwell or Howard Stern? Judging by the Supreme Court’s decision in the Texas sodomy case, the soldiers apparently died for a culture in which the only moral absolute is an unlimited right to perverted sex.
How bad was this decision? It was the most destructive federal power-grab since Roe v. Wade. The damage goes far beyond the question of sodomy laws. Here is some perspective:
First, the court struck down Texas’ sodomy law not on constitutional grounds, but on the idea of “privacy rights” established in Roe and expanded here. As Justice Antonin Scalia points out in his dissent, the court declined to overrule the legal reasoning in Bowers v. Hardwick (1986), but managed to obtain the result they wanted anyway, thus “taking sides in the culture war.”
Anthony Kennedy, who wrote the majority opinion, dismisses former Chief Justice Warren Burger’s “sweeping references” in Bowers to “the history of Western Civilization,” as irrelevant and cites instead the Model Penal Code, which the American Law Institute concocted in 1955, and which is based on the “sex science” of Alfred C. Kinsey. Kinsey, who was unmasked as a fraud and a homosexual masochist, worked with Harvard law professor Herbert Weschler to produce the code. The idea was to overhaul and weaken America’s sex laws.
Over the years, legal activists used the code to reduce penalties against sex offenders, thus putting more women and children at risk. In 1961, as Kennedy notes, the code was instrumental in Illinois’ becoming the first state to strike down a sodomy law.
One of the most shocking elements of the decision is Kennedy’s invoking the authority of the European Court of Human Rights. Since when is an American Supreme Court decision subordinate to anything European? We freed ourselves from bad European ideas by winning the American Revolution. You don’t have to stay up nights listening for black helicopters to see disturbing evidence here of a willingness to surrender some of America’s sovereignty.
For good measure, Kennedy also cites Great Britain’s Wolfenden Report (1957), another piece of social engineering packed with junk science. In fact, Kinsey himself had traveled to England to help craft the report, which recommended reducing penalties for obscenity, homosexuality and assorted perverse offenses. As Dr. Judith Reisman points out in her book, “Kinsey: Crimes and Consequences,” the Wolfenden Report references the Model Penal Code, and American sex revolutionaries cited Wolfenden in efforts to weaken American sex offender laws. The “authority” of the reports was traded back and forth over the Atlantic, but the “scientific” source was the same: Alfred Kinsey. Now, Anthony Kennedy has managed to cite both of these documents to justify trashing the Texas law.
In saying the Texas statute lacked any “rational basis,” the majority ignored the moral right of the people of Texas to govern their own communities, and put all criminal laws against sexual misbehavior, such as bigamy, adult incest, bestiality and obscenity at risk. Scalia warns: “If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.”
The court also ignored voluminous medical evidence in amicae briefs documenting the harm that sodomy wreaks among homosexuals, men in particular. Given that sexually transmitted diseases peculiar to acts of same-sex sodomy have created a wildly disproportionate epidemic of diseases among homosexual men, Texans have every right to differentiate between the marital bed and the “gay” bathhouse. Kennedy writes that the state must stay out of it, “absent injury to a person or abuse of an institution the law protects.” The deaths of hundreds of thousands of men from AIDS, and many other diseases stemming from homosexual practices, constitute “injury.”
But never mind the medical evidence, the Bible, English Common Law, the nation’s historic rejection of sodomy and the right of Texans to set the moral standard for their own communities. The Court’s growing worship of extreme individualism, in which the whims of the imperial self trump all, governed this decision.
Civil libertarians, who are tone deaf when it comes to the importance of family and faith to the preservation of freedom, may celebrate for a time. But they are guaranteeing more government, not less, as judicial activists sweep aside the protective influence of families and communities. Big government increases in direct proportion to so-called sexual liberation, because someone has to pick up the pieces.
Eventually, even the newly liberated individual stands naked before the state, facing a cold, contractual bureaucracy that will dictate his future. The bureaucrats are only too happy to let him run amok sexually, so long as they direct all other aspects of his life. It is so much easier to control people who have sex outside marriage. Those family ties don’t get in the way.
Robert Knight is director of the Culture and Family Institute, an affiliate of Concerned Women for America, and a former news editor for the Los Angeles Times.
