We all know the story of the king who paraded through the street wearing no clothes. Everybody in the kingdom knew the naked truth, but they just weren’t intellectually honest enough to admit the king had no clothes. Now that the U.S. Supreme Court has taken up the case involving Proposition 8 from California and the federal Defense of Marriage Act, the Court’s lack of intellectual integrity will be “exposed” for all to see.
Whether the Court reaches the question of the constitutionality of laws restricting marriage to one man and one woman this summer or some summer down the road, the issue is going to expose its intellectual integrity. When the time comes that they can no longer “skirt” the issue on procedural grounds, the Court will only have two options, if they want to retain any vestige of intellectual integrity.
The stage was set in 2003 when in Lawrence v. Texas the Supreme Court struck down as unconstitutional Texas’ homosexual sodomy statute. In doing so, the Court said, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”
If this is true, then like the fashionability of men’s leisure suits, the law itself will have come to an end. Justice Scalia, in his dissenting opinion in Lawrence put it this way, “This effectively decrees the end of all morals legislation.” The reason this is so is twofold.
First, law must come to an end because, deep down, we all know that all law regulates conduct on the basis of the morality of that conduct. All conduct contains a moral dimension, and every law is a moral judgment. To say otherwise is not being intellectually honest.
Second, we all know that the law should, to the extent practical, prohibit or restrain that which is immoral and leave alone that which is moral and right. If you’ve ever argued that a law was “bad” in some way, you were making a moral judgment. “Bad” and “good” are ethical words. To deny this is also intellectually dishonest.
That is why I join with Justice Scalia in saying that if society can’t pass a law to restrain or prohibit conduct the majority of people in a state thinks immoral, then the law has come to an end. There’s nothing for it to do.
Ironically, the Court gave us a peek behind the cloak of intellectual integrity it purports to wear by making the very kind of moral judgment that it said was impermissible. In striking down the Texas statute, the court made the moral pronouncement that opposition to homosexual sodomy is grounded in “tradition,” not any real morality. Moreover, the Court said, “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” How’s that for not making a moral judgment?
So, if the Court is going to be intellectually honest with itself and honest with us, at some point it must do one of two things:
- Rule that restricting marriage to one man and one woman is unconstitutional because such a law is impermissible morals legislation grounded only in “tradition,” or
- Admit that its rationale in Lawrence was wrong and that the immorality of some act is a sufficient basis to restrain or prohibit it unless otherwise specifically protected by the Constitution.
Of course, as Justice Scalia said in his dissent in Lawrence, if they don’t do one or the other we will know that “principle and logic have nothing to do with the decisions of this Court.”
The sad truth is that we already know that. In upholding Georgia’s sodomy statute back in 1986, the Court said, “The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
So, the fact of the matter is that ever since the Lawrence case in 2003 the Court has been running around naked (or should we say “disrobed?”) when it comes to intellectual integrity.
We’ll soon found out whether they have enough sense to put some clothes on.
1 Those purposes were said to be “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”