For an issue as politically divisive as a prohibition on homosexual sex, reaction to Thursday's Supreme Court Lawrence v. Texasdecision against antisodomy laws is surprisingly uniform: almost everyone agrees it's a broad, far-reaching ruling with consequences for years to come.
"Lawrence v. Texas could have implications far beyond the closed doors of private homes," The Washington Post noted in a news story Friday. "In an unexpectedly large step, the court said traditional morality is no justification for making legal distinctions among sexual behaviors of consenting adults."
Similarly, the Posteditorialized, "The importance of [the] 6 to 3 decision is not simply that the court struck down an oppressive law. … It tells legislatures that a majority's opinion about what is or is not moral cannot justify the state's intrusion into the most intimate details of people's lives."
The main disagreement is whether this momentous decision was wise. And evangelicals, who are not always in agreement on public policy toward homosexuality, seem to be uniform in saying the court went too far.
To be sure, Thursday's decision would have elicited reaction from some religious conservatives regardless of the outcome. The Family Research Council, for example, issued a press release Wednesday saying it was "ready to respond" regardless of the outcome, and that the case had implications for the nation's understanding of marriage. And indeed, when the decision came, FRC president Ken Connor called it "a direct attack on the sanctity of marriage." But he didn't stop there. "Nothing less than the people's right to self-government is at stake," he said.
"We all were especially surprised by the scope and breadth of [Thursday's] opinion," Jay Sekulow, legal director of the American Center for Law and Justice, told The New York Times. "It was a grand-slam homer for the other side."
"The end of all morals legislation"
The court considered a number of issues in throwing out the Texas antisodomy statute and its 1986 Bowers v. Hardwick decision approving a similar law in Georgia. But of prime concern for evangelicals now is the majority's opinion that morality cannot define the law.
"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," Justice Anthony M. Kennedy wrote, quoting Justice John Paul Stevens's 1986 dissent in the Georgia case.
The majority opinion authored by Kennedy said homosexuals have a right to privacy guaranteed by the U.S. Constitution, and laws regulating their consensual sexual practices violate that right. Justice Sandra Day O'Connor wrote a concurring opinion to distinguish her view from that of the majority. For her, the issue was not privacy, but equality. The Texas law, she wrote, was unconstitutional because it made sodomy illegal only for homosexuals—heterosexuals could still engage in such activity. (She therefore did not want to overrule Bowers v. Hardwick.) However, O'Connor affirmed that behavior cannot be made criminal simply because of moral concerns.
"This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not," she wrote. "A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution."
"This effectively decrees the end of all morals legislation," wrote Justice Antonin Scalia in his dissenting opinion. "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices," he wrote. "Every single one of these laws is called in to question by today's decision."
Justice Clarence Thomas joined Scalia's dissent, but added his own comment that the Texas antisodomy law "is uncommonly silly" (the term comes from a 1965 decision overturning Connecticut's ban on contraceptives). "If I were a member of the Texas Legislature, I would vote to repeal it," he said. "Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."
Likewise, some evangelical leaders are critical of both the Texas law and the Supreme Court's decision.
"I do not oppose sexual freedom for homosexuals, but I worry about the slippery slope" created by the decision, Richard Mouw, president of Fuller Seminary, told Christianity Today. "If this were simply a decision that said we are going to strike from the books all state laws that prohibit genital intimacy between persons of the same sex, then we wouldn't be deeply frightened or offended by that. But this seems to be not the last item on the agenda of a movement that wants to undermine traditional notions of family."
Mouw says antisodomy laws, which exist in 12 states other than Texas, are "an expression of legitimate concerns" that are unrealistic, unworkable, "and probably not just" in a pluralistic society. But the Supreme Court's reasoning, he said, sets a dangerous precedent. "Having abandoned the notion that the state has an interest in strong marriages, what that leaves us is anything goes, as long as it's consensual." He believes Christians should "focus not on overturning the decision, but on defending the traditional definition of marriage as a healthy foundation."
Ronald J. Sider, president of Evangelicals for Social Action, agrees. "I'm certain the gay lobby will use this to push for homosexual marriage; we need to say no," he told CT. But neither should Christians rush to reimplement antisodomy laws, he says. "I do not think we should use the force of the law to punish people who engage in homosexual sex," he said. "This may be a good time to put more energy into the Federal Marriage Amendment—not because we think this decision is wrong, but because other people will use it in a way that is not wholly logical."
Actually, it's perfectly logical, says Charles Colson, founder of Prison Fellowship. "If the Court is logical and consistent—and thank God they often aren't—then it's only a matter of time before the taboos and legal prohibitions against incest, polygamy, and bestiality fall," he says at his Breakpoint website. He also takes issue with the court's argument that the Texas law discriminates against homosexuals. "Of course the law discriminates," says. "It's supposed to. It's supposed to discriminate between good and bad; what is sound public policy and what is not, what is good for the common weal. That's what legislation does."
Sounding the alarm?
Several religious and profamily organizations issued statements calling the Supreme Court decision a national turning point toward depravity.
"Those who believe that sexual morality is about more than personal preference will look to this decision as a tragic turning point in our nation's culture war," R. Albert Mohler Jr., president of Southern Baptist Theological Seminary, told Baptist Press. "Those prophetic voices warning of a judicial usurpation of politics can at least say that they warned us."
Robert Knight, director of Concerned Women for America's Culture & Family Institute, said the ruling "means that schoolchildren will be taught that homosexual sodomy is normal, healthy and the equivalent of marital sex. And it will intensify efforts to attack the next barrier to total sexual 'liberation,' the laws regarding the age of consent."
"With today's decision the court continues pillaging its way through the moral norms of our country," said Focus on the Family vice president Tom Minnery. "If the people have no right to regulate sexuality then ultimately the institution of marriage is in peril, and with it, the welfare of the coming generations of children."
But other evangelical leaders say some of the alarm is overblown and perhaps misdirected.
"It's hypocritical if we focus only on homosexual behavior," Glen Lavy of the Alliance Defense Fund told World magazine. "Before God, all sex outside of marriage is a sin. … So while we're disappointed, this is no worse than having a state legislature say, 'We're no longer going to criminalize adultery or fornication.' It's just further evidence of the decay of the moral fabric of our country."
"We would counsel not to overread the case," Carl H. Esbeck, legal counsel for the National Association of Evangelicals' office of governmental affairs, told CT. "The court decided that there is in the 14th Amendment a right of privacy for adults to practice consensual homosexual intercourse. That is the only thing decided. … There are additional bridges to cross. Don't panic here."
Asked if he thought the Supreme Court's reasoning created a slippery slope toward gay marriage and other sexual liberties, Esbeck replied, "I was using a different metaphor. There's no slippery slope here. I am envisioning a flat road that from time to time has bridges that will be crossed."
One bridge crossed Thursday, Esbeck says, is the loss of the idea that law is a moral teacher. "It is a healthy reminder, maybe a rude one, that it is first and foremost the church that has the responsibility to teach Old and New Testament morality," he said.
In an interview with Focus on the Family, Liberty Legal Institute chief counsel Kelly Shackelford also said that the decision and reasoning may not be as broadly applicable as activists on both sides are suggesting. "There are very few implications," he said. While the Supreme Court expanded the right of privacy, he points out, it didn't say "that homosexuality was somehow a fundamental right, or that discrimination against homosexuals was legally forbidden." Shackelford says that homosexual activists
will be able to say that "our relationships are afforded liberty interests under the Constitution"—something which our Founders would never had said was true—but the "atomic bomb" would have been to create a fundamental right for homosexuality, similar to the so-called right to abortion, or even to the right of free speech. That the Court did not do. So whatever gay activists may have been given under this decision is much weaker than they had hoped for.
A church-state case?
Other analysts are examining the Lawrence v. Texas decision for implications in other areas of jurisprudence, including abortion and church-state relations.
"The good news is that it opens the door to reversing Roe v. Wade," Phyllis Schlafly, president of the Eagle Forum, told The New York Times. "If the court can overturn a decision made 17 years ago, they can now overturn Roe." In fact, Justice Scalia made a similar case in his dissenting opinion, noting that the majority opinion credited public opposition to the Bowers decision as a reason to ignore stare decisis (the principle that courts stand by earlier rulings). In the 1992 Planned Parenthood v. Casey case, "when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it," Scalia wrote. "Today, however, the widespread opposition to Bowers, a decision resolving an issue as intensely divisive as the issue in Roe, is offered as a reason in favor of overruling it."
But it's unlikely that Lawrence v. Texas will ever be used to overturn Roe. If anything, the decision's expansion of the right to privacy (the Court in Lawrence v. Hardwick called it the "liberty of the person both in its spatial and more transcendent dimensions") will make such an action even more difficult.
Others have suggested, however, that the decision could have implications in future cases involving government and religion. "Although this is not a church-state issue in the narrowest sense, it is a victory for the separation of church and state," Bernadette Brooten, professor of Christian studies at Brandeis University, told the Los Angeles Times. "The court has moved beyond a Christian shaping of laws concerning sexuality." (Brooten earlier wrote a book claiming that the early church performed same-sex marriages between women.)
Columnist Neil Steinberg made a similar argument in Friday's Chicago Sun-Times. "For the past 200 years, the miracle of democratic government has been slowly stuffing religion back into its box. Thursday's Supreme Court ruling on anti-sodomy laws is another step," he said. "I don't muse about God much, obviously. But when I do, I can't conceive of Him caring an awful lot about the various practices consenting adults do back in their bedrooms. Awful childhood diseases don't bother Him, apparently. No reaction on the Congo to date. Is he really steamed that Brad and Tim are frolicking? Not only don't I believe it, but I have a hard time believing that anybody believes it."
Evangelicals are likely to find such comments much sadder than the Supreme Court's majority opinion.
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Other comments from Christian leaders include:
"This is probably as bad a day as the court has had on social issues since Roe v. Wade. … [The Court put]Court put the right of privacy ahead of respect for community standards of morality which have prevailed for many years." — Jerry Falwell, quoted in The New York Times.
"Today's decision has awakened a sleeping giant, and will galvanize and reinvigorate the majority of Americans who believe in traditional marriage but have ignored the radical agenda of the same-sex marriage movement." —Mathew D. Staver, president and general counsel of Liberty Counsel, quoted in The Washington Post.
"The White House should take note of the fact that four of the six justices making this decision were appointed by Republican presidents. A conservative, pro-family president must be extremely careful to make sure that any appointments he makes will defend traditional values." — Gary Bauer, president of American Values, quoted in USA Today.