Ed Vitagliano | Journal News Editor
Most people have never heard of Lawrence and Garner v. Texas, but
after the U.S. Supreme Court rules on the case sometime before the
end of June, chances are it will become as famous as Roe v. Wade,
the high courts 1973 decision legalizing abortion.
Lawrence and Garner v. Texas deals with the issue of homosexual
sodomy admittedly an issue that most people rarely, if ever,
think about. However, the core principles of the case are intertwined
with related issues like human sexuality and marriage, making it
a potential earthquake in American culture.
The case has been moving up the appellate ladder for more than four
years. In September, 1998, Houston police were summoned to the apartment
of John Geddes Lawrence, 55, under the impression from a phone call
later determined to have been fake that an intruder
was in the apartment with a gun. When officers entered the apartment,
they found Lawrence and Tyrone Garner, 31, both homosexuals, in
a back bedroom engaging in sodomy. Both men were arrested under
a Texas law which makes homosexual but not heterosexual
sodomy a crime.
Not since other watershed decisions such as those affecting
prayer in public schools and abortion has a case come before
the U.S. Supreme Court carrying such dramatic potential to reshape
American culture, said Stephen M. Crampton, Chief Counsel
for the AFA Center for Law & Policy (CLP).
The CLP has filed a brief in support of the Texas sodomy law, and
the case will be argued before the U.S. Supreme Court on March 26.
(See AFA Journal, 3/03.)
orderly natural world
Interestingly, the nations highest court will be revisiting
in Lawrence and Garner v. Texas the same general issues dealt with
in a previous Supreme Court case. In Bowers v. Hardwick (1986),
a 5-4 high court majority upheld Georgias sodomy statute.
That narrowest of decisions, however, pitted two culturally distinct
appraisals of morality and law against each other and in
fact provides a clear lesson about what has become known as the
Sadly, however, since 1986 the more traditional Judeo-Christian
views which prevailed in Bowers have been steadily eroding in our
culture, in favor of the more postmodern views of the minority in
that case. Should the Supreme Court in Lawrence take an opposite
view than it did in Bowers, that would mean quite remarkably
that in the span of only 17 years, the notion of law and
morality inherent in the Judeo-Christian worldview had been decreed,
by unelected judges, obsolete.
Most sodomy laws have already disappeared anyway. In 1960, all 50
states had such laws on their books now only 13 states do.
However, the repeal of these laws either by state legislatures
or judges indicates that the statutes represent a worldview
that is rapidly being abandoned in favor of postmodern relativism.
Sodomy laws derive from an older recognition of an orderly natural
world, reflecting an intelligent design and, thus, purpose within
nature, called natural law.
Brian Fahling, senior policy advisor and senior trial attorney for
the CLP, said, The laws of nature thunder loudly against the
notion that two men ought to be having sex with each other. The
Texas law upholds that self-evident reality.
Natural law was also traditionally used to help reinforce the moral
views of the people and, in turn, both were embodied in man-made
laws by duly authorized legislatures.
However, marching in lock step with the movement to overthrow natural
law has been the demand that laws be stripped of their moral components
A lot of times people will say, Well, you cant
legislate morality, Fahling said. But you can.
You must. You cant intrude on the heart and mind, of course,
but what you can do is proscribe conduct that is injurious to society
at large even if its one or two individuals consensually
engaging in a particular sexual act. Law has tremendous power because
it makes a profound statement about who we are as a people.
In fact, one of the arguments against Georgias sodomy statute
in Bowers was that the only foundation for the law was the consensus
that homosexuality was immoral.
This is said to be an inadequate rationale to support the
law, said Justice Byron White, who penned the majority decision
in Bowers. The law, however, is constantly based on notions
of morality, and if all laws representing essentially moral choices
are to be invalidated
the courts will be very busy indeed.
Justice Harry Blackmun took the opposite view, however, in writing
the dissent for the minority in Bowers, and it is a view which has
a growing number of adherents less than two decades later.
Certainly, some private behavior can affect the fabric of
society as a whole, he admits, but then proceeds to assert,
without proof, that the Supreme Court could rest assured that the
moral fabric of the nation would not be affected negatively merely
because some private sexual practice which they abominate is not
punished by the law.
Crampton said, It changes our culture tremendously to assert
that heterosexual and homosexual sex are moral equivalents. For
one thing, it completely destroys the belief that marriage should
be between one man and one woman. And when that concept is invalidated,
then the entire concept of what a family is is altered as well.
Crampton also brushed aside the contention of homosexual activists
that a society should not legislate morality. The homosexuals
in the Texas sodomy case are, in essence, legislating morality.
Theyre just saying that our traditional morality is wrong,
that the old morality has passed away, and ought to be replaced
with their version, which is based on personal autonomy devoid of
any corporate sense of right and wrong.
Moreover, those advocating for the repudiation of sodomy laws sometimes
admit their core objection: that the morality reflected in such
laws are rooted in the Judeo-Christian religious tradition.
In its editorial on the subject, Does government have a duty
to legislate morality? The Atlanta Journal-Constitution praised
the Georgia State Supreme Court for striking down that states
182-year-old sodomy statute in 1998. The papers editors said,
Georgias sodomy law fell, then, on a question of privacy,
but it arose, like many other statutes, out of a notion of morality
grounded in religious belief the concern about sinful
All [sodomy laws] have their origins in biblical
injunctions of one kind or another.
Blackmun seemed particularly provoked by [t]he theological
nature of the origin of Anglo-American anti-sodomy statutes.
He said in Bowers: The assertion that traditional Judeo-Christian
values proscribe the conduct involved
an adequate justification for a law. That certain, but
by no means all, religious groups condemn the behavior at issue
gives the State no license to impose their judgments on the entire
If Blackmun was anxious to scrub away the dual influences of natural
law and moral consensus from the facade of man-made laws, with what
principle would he have replaced it? The answer was a simple precept:
What a person does in the privacy of his own home is no ones
Citing a previous Supreme Court decision, Blackmun said in Bowers,
Our cases long have recognized that the Constitution
embodies a promise that a certain private sphere of individual liberty
will be kept largely beyond the reach of government.
That principle invalidated the Georgia sodomy statute, he said,
because it denies individuals the right to decide for themselves
whether to engage in particular forms of private, consensual sexual
Moreover, Blackmun argued, there is no right or wrong way of choosing
lifestyles. He quoted a previous Supreme Court case which dealt
with the beliefs of the Amish concerning mandatory public school
attendance for their children: There can be no assumption
that todays majority is right and the Amish and
others like them are wrong. A way of life that is odd
or even erratic but interferes with no rights or interests of others
is not to be condemned because it is different.
That a justice of the nations highest court could equate the
Amish decision to home school their children with two men committing
homosexual sodomy is breath-taking. Blackmun illustrated the postmodernist
tendency to lump all lifestyles together without allowing for any
moral distinctions between them. After all, once an individual rejects
design and purpose in nature, and once it is demanded that laws
have no moral ingredients, then there exist no absolute, transcendent
standards by which decisions can be judged.
The majority in Bowers, however, saw the issue differently. Simply
saying that homosexual sodomy should be legal since it is voluntary
sexual conduct between consenting adults is arbitrary, White
said. [I]t would be difficult, except by fiat, to limit the
claimed right to homosexual conduct while leaving exposed to prosecution
adultery, incest, and other sexual crimes even though they are committed
in the home. We are unwilling to start down that road.
Fahling said Blackmuns arguments are the same as those being
made by the lawyers for the two homosexual men in the Lawrence case.
They are emptying this so-called right of privacy
of all moral content. They say, Well, you should be allowed
to choose. But choose what? You have to examine choices, not
in a moral vaccum, but in the context of what, precisely, you are
choosing, he said.
However, Fahling says the problem is that our nation is developing
a moral vacu-um in the public marketplace of ideas.
In the abstract we can affirm that certain sexual acts, which
fall outside the marriage bed, are inimical to the moral welfare
of a nation and should be proscribed by law, he said.
Unfortunately, any moral consensus we may have had on human
sexuality is vanishing.
In such a cultural climate, the survival of sodomy laws seems unlikely.
In a society without a moral consensus, it is difficult for
laws rooted in morality to exist, Fahling said. You
can have laws which can help protect an existing moral consensus,
but you cannot use laws to create one.
Today people seem more likely to agree on a morality that embraces
relativism than one that accepts traditional views as normal. The
hearts of the people have changed, Fahling said. If
there is an actual moral consensus, it is beginning to coalesce
around Justice Blackmuns concepts of almost absolute individual
freedom, devoid of any societal disapproval.
Fahlings comments carry a tragic air. When the Supreme Court
upheld Georgias sodomy law in 1986, the countrys cultural
norms were certainly more traditional. Thus the majority in Bowers
stated firmly, We are unwilling to start down that road
of tossing aside laws criminalizing immoral sexual conduct.
However, 17 years later, cultural conservatives are anxiously wondering
whether the worm has turned.
LAWRENCE BE DECIDED BY ACTIVIST JUDGES?
The Texas sodomy statute at issue in Lawrence and Garner
v. Texas will not only be determined by the U.S. Supreme Courts
views on morality, but by its views regarding federalism and the
creation of constitutional rights.
The principle of federalism guided the creation of our republic
more than 200 years ago, when the original 13 states voluntarily
granted some of their powers to the newly fashioned national government.
In exchange, the states were given the assurance spelled
out in the Constitution that they would maintain their own,
inviolate spheres of authority.
However, conservatives are concerned that the Supreme Court, if
it invalidates the Texas sodomy statute, would be overstepping its
The United States Supreme Court doesnt have any lawful
authority to strike down this statute in Texas, said Michael
DePrimo, litigation counsel for the AFA Center for Law & Policy.
The states have always been allowed to legislate in areas
left untouched by the Constitution.
In fact, in Bowers v. Hardwick, the 1986 case in which the
U.S. Supreme Court upheld Georgias sodomy law, the majority
opinion was firmly rooted in this view of federalism. Chief Justice
Warren Burger said the case was a question that concerned the
legislative authority of the State. I find nothing in the Constitution
depriving a State of the power to enact the statute challenged here.
An equal concern, DePrimo said, is that by striking down the Texas
law in Lawrence, the Supreme Court would essentially be creating
a new constitutional right to practice sodomy. The amendment
process spelled out in the Constitution presents a clear-cut mechanism
for providing new rights for the people should they desire them,
he said. The Supreme Court must not simply create those rights
out of thin air.
That is precisely what the majority said 17 years ago in Bowers.
The Court said it was not inclined to take a more expansive
view of our authority to discover new fundamental rights imbedded
in the Constitution, adding that the Supreme Court is most
vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable roots
in the language or design of the Constitution.