Lawrence et al. v. Texas
I have been reflecting on the monumental, six to three decision of the United States Supreme Court this past Thursday, June 26, 2003, Lawrence et al. v. Texas, No. 02-102, where the court ruled that Texas’ anti-sodomy laws were unconstitutional on the basis of the Fourteenth Amendment’s due process clause. (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Constitution of the United States of America, Amendment XIV, Section 1.)
With five of the justices rooting their opinion in the due process clause, this decision is most significant: without explicitly saying so, these five justices have implied that people have a fundamental right to engage in virtually any kind of sexual activity and have implied that this is a fundamental right on the order of the freedom of speech, assembly and religion, the kinds of things enumerated in the First Amendment. In effect, the Court overruled itself, having decided back in 1986, in Bowers v. Hardwick, 478 U.S. 186 that “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.”
Associate Justice Antonin Scalia strongly dissented from this past Tuesday’s six to three decision and read his dissent in open court:
“What a massive disruption of the current social order, therefore, the overruling of Bowers entails.” (539 U. S. ____ (2003) 19 SCALIA, J., dissenting in Syllabus, LAWRENCE ET AL. v. TEXAS, CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, No. 02–102. Argued March 26, 2003--Decided June 26, 2003, p. 7.)
Justice Scalia then quotes with approval the Supreme Court’s decision seventeen years ago in Bowers:
‘“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” 478 U. S., at 192–194 (citations and footnotes omitted; emphasis added).’ (ibid., pp. 11, 12.)
Justice Scalia comments:
“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” (ibid., pp. 18.)
The day after Thursday’s decision, the Court overturned the sentence of an eighteen-year old Kansas man who had consensually sodomized a fourteen-year old, because his sentence was much longer than if this had not been sodomy and merely consensual, traditional sexual intercourse between a male and female of corresponding ages. ‘In a brief order with little elaboration, the court vacated the 17-year sentence imposed in 2000 on the defendant, Matthew Limon, and returned the case to the Kansas courts “for further consideration in light of Lawrence v. Texas.”’(New York Times, June 27, 2003.)
These kinds of judicial implications should make us take Justice Scalia’s warning very seriously:
‘Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.’ (Scalia, op. cit., pp. 20, 21.)
As with Associate Justice Harry Blackmun’s 1973 abortion opinion (Roe v. Wade, 410 U.S. 113) where a fairly narrow ruling had the effect of broadly wiping out all state laws against abortion, so with Anthony Kennedy’s opinion regarding sodomy. The parallels between Roe and Lawrence are striking: both originated in Texas, both are rooted in the due process clause of the Fourteenth Amendment (which has been used to alter traditional state laws by Federal judicial fiat.) and both have sweeping implications beyond their initial, rather narrow ruling.
In Roe, for example, Justice Blackmun wrote that a state could not forbid abortion during the first trimester of pregnancy, but he was not so restrictive with regard to what a state could proscribe during the second and third trimesters, even going on to say: “For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” (ibid.) However, as the past thirty years have testified, the impact of Roe has been enormous, having virtually removed every single state’s laws limiting abortion in any way, at any time during a pregnancy. And Roe has paved the way for the growing acceptance of infanticide and euthanasia.
In the same way, Lawrence throws suspicion on every state statute regarding sexual practice. Logically, in light of Lawrence, can any state now criminalize prostitution, incest, polygamy or sexual torture as long as there is consent? On what logical basis does the state limit the age of consent to persons over the age of seventeen? As Mr. Scalia points out: ‘This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.’ (Scalia, op. cit., pp. 20, 21.)
The Court’s decision will bring sweeping changes to every facet of American life. What should be kept in the closet will now be flaunted in public: “The expression of their faces bears witness against them, and they display their sin like Sodom; they do not even conceal it. Woe to them! For they have brought evil on themselves.” (Isaiah 3:9.)
How does one who loves his country or cares about the welfare of future generations deal with the anger that this act of a legislative judiciary produces?
Hebrews 11:13-16 comes to mind: “These all died in faith, not having received the promises, but having seen them afar off were assured of them, embraced them and confessed that they were strangers and pilgrims on the earth. For those who say such things declare plainly that they seek a homeland. And truly if they had called to mind that country from which they had come out, they would have had opportunity to return. But now they desire a better, that is, a heavenly country. Therefore God is not ashamed to be called their God, for he has prepared a city for them.”
Relief from anger comes as we remind ourselves that our citizenship is in heaven rather than in America, and we get real relief if we begin to think of ourselves as missionaries in a foreign country. If we think about America the way that we do, say, about Communist China or Iraq, our anger goes away. Rather than feeling anarchistic rage surge within, we find ourselves feeling privileged to work in a heathen country to win people to the Lord Jesus Christ, people who would otherwise spend eternity in a place of unending torment, the lake of fire. Cultural, political and jurisprudential changes are down the road—perhaps a long way down the road, even, perhaps, long past our lifetime—but we realize that we have the Lord Jesus’ own promise of success in our gospel labors, and we rest in the knowledge that where multitudes turn in brokenness to the Lord Jesus, the leavening effect of the gospel has always impacted the worldly structures in which people live. It is how changes came in the Reformation, the Puritan Revival and the first and second Great Awakenings.
As we read accounts of England before Whitfield, we understand that we do not live in the only times of darkness. God has overthrown wickedness many times in the past, and he has promised: “For the scepter of wickedness shall not rest upon the land of the righteous, So that the righteous will not put forth their hands to do wrong.” (Psalm 125:3.) God’s Word assures us that “The earth will be filled with the knowledge of the glory of the Lord, as the waters cover the sea.” (Habakkuk 2:14; Isaiah 11:9.)
Insofar as we are not forced to violate God’s Law, we must obey the laws of our country. Were we to be drafted into its armed forces, we should serve, just as we would serve were we living in North Korea or Iran. And we will pray for the President, the Congress and the Judiciary, just as we would pray for the rulers in any other country where we were serving as a missionaries. But for me, whatever vestiges of jingoistic pride were left in me died on Thursday, and I am ashamed of America’s embracing the lifestyle of ancient Sodom. I am deeply grieved about the relatively near future for my children and grandchildren and for the sheep of Christ’s flock for which I must give an account. But I must not let my anger turn to sin, nor let the “sun go down upon (my) wrath.” (Ephesians 4:26.)Living in the United States in 2003, I must confess “I am a stranger . . . a sojourner like all my fathers.” (Psalm 39:12.) I must guard my heart here, in this latter day Babylon, “For here we do not have a lasting city, but we are seeking the city which is to come.” (Hebrews 13:14.)
There is hope for people who struggle with sexual sin, but that hope is realized only when people acknowledge that their behavior as sinful and seek God’s grace in Jesus Christ. There is no problem too big for him to handle or sin so bad that he will not forgive us if we turn from our sin to him.