Last week, the Supreme Court of the United States showed the courage to discard one of its tragic mistakes. In 1986, in Bowers v. Hardwick, the justices said that homosexuals did not deserve or enjoy the same rights of sexual privacy that all human beings cherish as one of the essential elements of human liberty.
The Court reconsidered and overruled Bowers in a decision announced on the last day of its term. The lawyers had scrambled to find narrow and persuasive reasons to undermine Bowers, but the justices accepted the boldest and broadest arguments for gay rights. Unfortunately, the justice and humanity of the Court's newer decision, Lawrence v. Texas, is compromised by the fact that the justices recited arguments that prove too little and too much.
Justice Anthony Kennedy all but said that times had changed. And the newer sentiments of the country amounted to a new tradition the Court was obliged to respect. He is probably right in the sense that the gay rights case probably reflects our present culture more than our past traditions.
Ten years ago, Julia Roberts starred in a film "The Pelican Brief." Early in the film, before things get tense, there is a scene which only a law professor like myself woujld remember and appreciate. The film's law professor asks the class about Bowers case. The students respond predictably with arguments about privacy. The law professor follows the requirements of the job and reminds the students that neither the word "privacy" nor any "right of privacy" actually appears in the United States Constitution. Darby Shaw (Julia) shifts gears and argues that a person who cannot enjoy sexual intimacy with the person he or she loves "cannot be free." The law professor responds that the Court did not agree. He says, "the Supreme Court found that the statute did not violate the right to privacy - why is that?" Darby retorts "Because they were wrong." She flashes that movie star smile. The scene ends. Julia's answer is the last word. Later, we learn that there are reasons why the professor might have tolerated "because they were wrong" as acceptable constitutional argument.
Unfortunately, it turns out that her answer was a complete analysis. Justice Kennedy said so last week. Unfortunately, he didn't offer much more in the way of explanation than Julia -- and neither he nor his opinion have that smile.
The discarded Bowers decision had been a rallying point for a politics led by the "Know-Nothing" elements of our politics, driven by stone throwers who are always ready to throw stones at someone else's sin. Instead of making that part of our history clear, or clearer as did Justice Sandra Day O'Connor in a concurring opinion, the majority reaches for a less accusatory and divisive rationale. Justice Kennedy tells us that "Bowers was not correct when it was decided, and it is not correct today." It misconceives the issues at stake. It underestimates the character and importance of privacy and human liberty.
All the conclusions are there, but few of the explanations. Like other
historic decisions in favor of human liberty, Kennedy's opinion in Lawrence will be written and rewritten by law professors in search of a better basis for a just result.
Justice Kennedy tells us: "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." There is a lot of power and danger in that sentence. It goes a long way toward conceding much that Senator Rick Santorum argued in an unfortunate display of anti-gay prejudice a few weeks ago.
Is the essence of this new ruling a modern version of greater, ever-expanding freedom? Or is it a belated recognition that all human beings deserve the same core of privacy and freedom for sexual intimacy? Have the justices aligned themselves in favor of one side in our nation's culture wars, as Justice Antonin Scalia complained in dissent? Or is the humane heart of the decision the recognition that our republic never was, is not now, and can never be a totalitarian mechanism in which majorities control the essence of individuality? Justice Kennedy's failure to offer rigorous answers to these basic questions may make the case an enigma and a tragedy wrapped in substantive justice and real compassion.
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Rick Tepker
Calvert Chair of Law and Liberty
& Professor of Law
University of Oklahoma
Norman, Oklahoma 73019
[EMAIL PROTECTED]
405.325.4832
NC: 405.826.0845
