God Save This Vulnerable Court
National Review,
August 15, 1986
By John Neuhaus
PUT ASIDE FOR the moment the question of whether there should be state
laws against sodomy. Dr. Jerry Falwell is surely wrong when he says the Supreme Court
"has issued a clear statement that perverted moral behavior is not accepted practice
in this country." Among millions of Americans the culture of buggery is not only
accepted but championed. What the Court said is that the text and structure of the
Constitution do not establish the practice of sodomy as a "fundamental right."
The Court said other things that needed saying. In upholding the Georgia sodomy law, it
said that in this Republic the people have a fundamental right to make their own laws,
within the limits specified by the Constitution. In making such laws, the Court further
said, the people may properly be influenced by tradition, custom, and religious belief.
When judges try to override this democratic process by imposing their own values, they are
themselves acting unconstitutionally. In the words of the majority opinion by Justice
Byron White: "The 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."
Divorce Proceedings
Whether or not there should be a law against sodomy is for the representatives of the
people to debate and decide. Either way, it is a question of moral judgment. As Justice
White says, "The law . . . 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." Furthermore, the courts would be busily putting themselves out
of business, for a democratic people would not long countenance a legal system that
formally divorced law from moral judgment. Admittedly, law and moral judgment have too
frequently been separated in recent decades. But a final divorce decree has not come
through, and now, at long last, the Court may be favoring a reconciliation.
Justice Harry Blackmun, in bitter dissent, unfurled the tattered banner of unbridled
individualism. Two centuries of American jurisprudence may be described as a descent from
Providence to privacy, but Justice Blackmun thinks it’s progress all the way. With
remarkable candor Blackmun argues that the Court’s only reason for interest in
questions of marriage, family, childhood, and sexuality is that they bear upon the freedom
of the individual. Seldom has the classical concern for the "common good" been
rejected so explicitly. Blackmun writes: "We protect [such] rights not because they
contribute, in some direct and material way, to the general public welfare, but because
they form so central a part of an individual life." It is a revealing glimpse into
the mind of the author of the Roe v. Wade decision on abortion.
Consistent with his libertarian premise, Blackmun would employ judicial coercion to
liberate the individual by destroying the bonds of community and tradition, even when such
bonds are legitimated by democratic consent. He cites the infamous statement of Justice
Holmes: "It is revolting to have no better reason for a rule of law than that so it
was laid down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply persists from blind
imitation of the past." Yet more revolting is the hubris of judges who declare the
people’s wise affirmation to be blind imitation, and who conform the law to
"current values" as defined, of course, by themselves.
But the full force of Blackmun’s animus is saved for religion. I do not know
whether he is against religion as such, but he is certainly against religion that is so
impertinent as to impinge upon the res publica. In the present case he detects religion
breaking out from the sphere of privacy to which it is properly consigned. Blackmun says
he is not impressed by the "invocation" of Leviticus, Romans, and St. Thomas
Aquinas to the effect that sodomy is gravely wrong. "The legitimacy of secular
legislation," he argues, "depends . . . on whether the state can advance some
justification for its law beyond its conformity to religious doctrine." Surely he is
right in that. However, he overlooks the fact that Georgia and other states do advance
justifications beyond religious doctrine. Such justifications have to do with the common
good, but we have seen what Justice Blackmun thinks of the common good.
Public Nuisance
Blackmun, it is to be feared, does not want justifications "beyond" religion;
he wants justifications that exclude religion. In this view, the inclusion of religion or
religiously based morality lethally taints the law. Says Blackmun, "A state can no
more punish private behavior because of religious intolerance than it can punish such
behavior because of racial animus." Religion, when it impinges upon the public arena,
is by definition religious intolerance. Legal historians note that in the last four
decades there has been scarcely a Supreme Court reference to public religion that is not
strongly pejorative. Providence is protected by the privacy doctrine, so long as it
doesn’t make a nuisance of itself in public. Such is the perversity of mind that has
made the Court so vulnerable to challenge by democratic theory and practice. That is the
most important perversity addressed by Justice White’s majority opinion.
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