Dads Against the Divorce Industry

DA*DI is devoted to reinstating the societal valuation of Marriage and the traditional, nuclear American Family, with particular emphasis on the essential role of FATHERS.

DA*DI offers contemporary reports and commentary on culture; its aberrations and its heroes.

What the Supreme Court should have
heard in the Lawrence arguments

By Alan E. Sears
President of the Alliance Defense Fund
April 4, 2003

Whether you think sodomy is wonderful and should be constitutionally protected, or whether you think sodomy should be treated as a public health and safety hazard, you have to be amazed at what happened at the United States Supreme Court on March 26 in the Texas sodomy case arguments.

It was a stunning day, not because of what was said, but because of what was not said.   

The New York Times put it this way:  “The argument proved to be a mismatch of advocates to a degree rarely seen at the court.”  But, for a case that can lead to radical revisions of state marriage, sexual behavior, and public health laws, there were far bigger “mismatches.”  There was the near absence of constitutional common sense, history, facts, and relevant medical science for a case that somehow got to the high court with no real record below.

The case involves two men charged with sodomy under Texas law.  They lost in state trial and appeals courts, and the Texas Court of Criminal Appeals refused to hear the case.  With the help of the Lambda Legal Defense and Education Fund they appealed to the Supreme Court.

There was no real discussion in oral arguments of the terrible toll of sexually transmitted diseases, not even those uniquely spread by sodomy. The Centers for Disease Control has said that men who have sex with men are particularly susceptible to sexually transmitted diseases and their consequences.  

Why? Anal sodomy is not the same as marital intercourse or even most other forms of extra-marital sex.   Sexually transmitted diseases cost such a staggering amount – $17 billion according to the latest CDC report – that the public health, safety, and welfare issues cannot be ignored.  The price tag itself makes the issue transcend “privacy” concerns.   Many forms of sex outside of marriage, including this one are well within the state’s interest to regulate, but little was said of this before the High Court

The U.S. Supreme Court has repeatedly affirmed that state legislatures have the right to make laws in furtherance of public safety, health, and morality.  The Constitution does not require states to address all perceived evils on an all-or-nothing basis.  They can pick and choose which problems to address, even if some inequality results, as long as there is a rational reason for a law.  Public health concerns alone justify Texas’ law.

The court did not hear how Lawrence v. Texas is really part of the broader attack on marriage, and only superficially about sodomy.  Homosexual activists clearly reveal in Lawrence and other litigation – in Hawaii, Alaska, Vermont, Connecticut, Georgia, New Jersey, Indiana, Massachusetts, – that their goal is to redefine marriage through activist courts rather than using the democratic legislative process.   

In Lawrence, Lambda and other radicals attacked the Texas sodomy statute under both due process and equal protection grounds.  There are very serious consequences to this.  If they win their due process argument, and if sodomy becomes a (newly discovered) fundamental constitutional right  -- subject to a "strict scrutiny" standard , then fornication , prostitution  and many other legal limits on sexual behavior must fall as well because such laws would also be unconstitutional.  In other words, it would be unconstitutional to limit sex in many ways.  Parents, are you listening?   And as to equal protection the court and the country should have heard how that outcome so obviously points a dagger at the heart of marriage as exclusively an option for opposite-sex couples.

Throughout the argument some justices acted like they were unaware of the most basic legal precepts, such as the state’s right to exercise general police powers to regulate the, “health, safety, and morals” of their citizens.  That power includes the right to define marriage; to place limits on sexual behavior; to prohibit sibling marriage, acts of pedophilia, polygamy, incest, and many other behaviors whose regulation must all must fall  if theories advocated  by Lambda win. 

The court should also have heard much more about the American legal history of sodomy laws. A brief submitted by the Center for Original Intent of the Constitution documenting colonial and state legal history proves beyond debate that when the original Constitution was ratified, the Bill of Rights was adopted, and when the 14th Amendment was ratified, the framers and states had a clear understanding that sodomy was uniformly condemned and the behavior was not subject to some form of special privilege under the Constitution.   

Most importantly, perhaps, the arguments were the perfect opportunity to bring up the separation of powers. The Constitution does not make the Supreme Court a “super legislature” to revise and remove each section of a state's criminal code not currently in vogue in Hollywood and the media.  Matters of marriage and sexual morality such as these belong, as they always have in our federal system, with legislatures, not in federal courtrooms.

We pray that the swing justices will find the prospect of what would follow overturning the Texas law, even on the narrowest grounds, just too unpalatable and disruptive of law and society to allow this to happen.

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