To quote Popeye the Sailor (as I may have done before), enough is too much. While it may be appropriate to characterize one's opponents in this way in the popular press, to implicitly characterize members of this list with whom one has disagreements as "Know-Nothing elements" and "stone throwers who are always ready to throw stones at someone else's sin" breaks every rule of civility.
As self-promotion, this post fails utterly. It is simply shameless.
At 11:55 AM 6/27/2003 -0500, Harry Tepker
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.
_______________________ Rick Tepker Calvert Chair of Law and Liberty & Professor of Law University of Oklahoma Norman, Oklahoma 73019 <mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED] 405.325.4832 NC: 405.826.0845
