You might enjoy this column by this very sharp young lady:
cornellreview.org
It's The Penumbra, Stupid!
By Sara Townsley
Published 5/8/2003
John Leo’s “On Society” column in US News & World Report is one of my favorites, often the only page in a given issue I read from start to finish. But like many of my favorite thinkers, Leo takes an occasional misstep that I feel compelled to respond to. A recent column focuses on the controversy over Republican Senator Rick Santorum’s remarks on the Texas law prohibiting homosexual acts, now pending before the Supreme Court. Leo predicts that the Supreme Court will likely strike down the law, which prohibits consensual homosexual acts, on the basis of prior case law that protects the right to privacy in certain ill-defined circumstances.
Leo is correct to point out that the word “privacy” exists nowhere in the Constitution, a fact that comes as a shock to most non-lawyers. A 1965 case, Griswold v. Connecticut, a classic example of judicial activism, created this limited right to privacy from the “penumbra” surrounding the Bill of Rights. A penumbra, I learned in law school, is the glow that surrounds a candle flame. The “glow” emanating from the Bill of Rights, evidently, had “limited right to privacy when the esteemed Justices see fit to recognize it” written inside. While Griswold thus affirmed the privacy right of married couples to use contraception and plan families at their discretion, an obvious social good, the Court had to play fast and loose with the language of the Constitution to get there.
Good result, bad law. It is not up to judges to create rights out of thin air, even seemingly basic, obvious ones like this; it’s their job to interpret and apply the law as it is. Creating rights and making law is reserved exclusively to our elected officials in Congress, who may repeal judgments of the Court if they prefer a different result, either within the confines of the Constitution or by amending it. Just such a scenario would have been likely had the Court correctly concluded that the married couples of Connecticut were SOL. Much as I agree that the outcome of the case was just, the Griswold court exceeded its authority and imperiled the separation of powers, and that concerns me more than any individual decision, or the likelihood that Congress will reverse it. Every such ultra vires opinion raises the specter that a future activist court may conjure up and impose its own vision of the Constitution, with less beneficial results. Judicial activism introduces an element of caprice into the rule of law, turning our government of laws into a government of men. But bad or good, Griswold is binding precedent, and Leo is probably right that the Texas statute will be invalidated. Once again, this will bring good results, based on bad law.
And here is where I diverge from Leo, Santorum, and apparently many other conservatives: they claim this will necessarily lead to the legitimizing of bigamy, incest, and adultery, jeopardizing the institution of marriage. For one thing, none of these have large constituencies, any more than bestiality or pedophilia does, and I have no idea how incest enters the picture. Mainly, they overlook one blindingly obvious distinction: the gravity of bigamy and adultery is found not in the nature of the sexual conduct, but in its occurrence outside the marital relationship. Bigamy and adultery always result in harm to a third person and violate the marital contract, and thus lack any claim to the protection of law. Thomas Hobbes conceived of government limiting human action only when it threatens to encroach upon another’s rights and freedoms. Bigamy and adultery, by definition, do exactly that, while homosexual acts do not.
Conservatives’ fears that legitimizing homosexual conduct will lead to the legitimization of bigamy and adultery grossly distorts the controversy. It’s not about the right of married individuals to engage in extramarital sexual relationships; it’s about the right of unmarried, consenting adults to engage in sexual acts with unmarried, consenting adults of the same sex. The assertion that homosexual relationships endanger the institution of marriage is as extreme and illegitimate as the radical-left proposition that heterosexual relationships are a threat to the gay community. Like most extreme propositions, they’re also illogical and fail to account for the fine nuances of reality. Can one really say that bisexuals are threats to themselves?
If conservatives’ real problem is with promiscuity and the public health consequences, that’s a real concern, but one that transcends sexual orientation. But the primary issue appears to be a moral one. If conservatives are serious about discouraging behaviors that jeopardize marriage, it seems to me that outlawing adultery, as the military has, is a much more effective route than prohibiting homosexual acts. Homosexuals will keep engaging in homosexual acts, after all, and they will probably do so with other homosexuals, not married people, most of whom are presumably heterosexuals. I would estimate that one or the other spouse’s being lured into homosexual acts is not one of the leading causes of divorce. In fact, if the Man Show is any measure, many men would consider their marriages improved if only their wives could be lured into homosexual acts!
Besides outlawing adultery, effective measures to reduce threats to marriage may as well include laws against football, alcohol, nagging, credit card debt, impotence, laundry on the floor, in-laws, screaming children, high-stress jobs, getting fat, porn, strip clubs, good-looking co-workers, seductive friends, insulting friends, poker night, boxing, muscle cars, little potpourri cushions everywhere, and hair on the soap.
My point here is to illustrate the absurdity of conservative hostility to homosexuality, and to highlight how many everyday things pose much more real threats to real marriages. Unfortunately, I can only conclude that the real motivation is small-minded squeamishness toward something they would never do. Fine. My small-minded squeamishness dictates that I would never have sex with a liberal. But it would be just as illegitimate for me to advocate laws preventing others from having sex with liberals just because I find the idea abhorrent. Who one has relations with is an intensely personal choice, and as long as no one else suffers harm because of it, the government has no business meddling. At the same time, it is Congress with the authority to see to that, not the courts.
Conservatives should be more concerned with threats to conservatism, such as the hijacking of university classrooms in which the ideas of anyone to the right of Al Gore are ridiculed and suppressed. College students nationwide are forced to renounce the values they were raised with in favor of the false religion of Marxism, because they’re told it will lead to a better society. My Marxist reeducation was like being told to eat my spinach when I was a kid: I had to hold my nose to chew and swallow, but I did it because they said it was good for me in some mysterious way I would understand later. But forcing a personal value system on any individual is just as repugnant when it comes from the right as when it comes from the left. Either way, the imposition of orthodoxy represents the antithesis of a free society
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