The Supreme Court ended its term yesterday by issuing two controversial
opinions that suggest an odd understanding of its judicial obligations.
The Court was perfectly happy to instruct Texans on what they ought to
think about homosexuality, a subject not addressed in the Constitution and
historically left to state legislatures. On the other hand, it punted on
its core Constitutional duty to adjudicate First Amendment issues, paving
the way for a California anti-globalization nut to proceed with a lawsuit
against Nike on the grounds that corporations don't have free-speech
rights.
The Nike case offered the Court the opportunity to decide whether a
corporation's public statements are subject to the same constitutional
protections as those of its critics. The Supreme Court of California last
year ruled against Nike, which had defended itself against charges of
unfair labor practices by issuing press releases, among other outrages. The
California court deemed the company's public-relations campaign a violation
of the state's false advertising laws.
By taking a pass, the High Court sends the case back to trial in
California, whence it may eventually work its way back to Washington, a
process that will take years. Sooner or later the Court will have to rule
on corporate speech, and it's a shame it didn't seize the opportunity
now.
Perhaps the Justices were too preoccupied with the burden of playing
Solomon in the nation's culture wars. They leapt to that task, deciding
yesterday to overturn their own 1986 ruling in Bowers v. Hardwick, and finding a constitutional right to
privacy for consenting adults engaging in gay sex. Writing for the 6-3
majority in Lawrence v. Texas, Justice Anthony Kennedy says that
homosexuals "are entitled to respect for their private lives."
As it happens, an increasing number of Americans share that view. State
laws forbidding sodomy, once common, are now rare and seldom enforced. The
mainstreaming of gay culture is an undeniable fact of modern life. In his
dissent, Justice Clarence Thomas calls the Texas anti-sodomy law "silly"
and says he would vote to repeal it if he were a Texas legislator, as we
would too.
The nine Justices are not legislators, however, and in deciding
Lawrence they have once more usurped the electorate's right
to find its own consensus on matters of social mores. The Court's opinion
suggests that as those mores change the Justices have the power to reinvent
the Constitution's privacy right along with it.
But why should nine -- or six -- Justices accrete this power to
themselves? Such highly charged issues are better addressed by legislatures
representing voters than by judicial edict. The genius of democracy is that
it has the ability through debate to achieve consensus and settle these
disputes over time.
The High Court's interventions only keep the cultural wars going. That's
surely the lesson of Roe v. Wade, which has poisoned abortion politics (and
increasingly judicial politics) for 30 years. States were already beginning
to reconsider abortion laws when Roe was handed down from on high in 1973. Anti-abortion
Americans felt disenfranchised, and America's cultural debate was
immediately radicalized. If the Justices want to know why their nominations
have become pitched political battles, the arrogance of
Roe is the answer.
It remains to be seen whether Lawrence will become a homosexual Roe. Social conservatives are already sounding alarms
about gay marriage and the potential threat to the 37 state laws that
define marriage as between a man and woman. The logic of
Lawrence also validates Senator Rick
Santorum's recent point (much distorted by the media) that this line of
reasoning opens the door to discovering constitutional protection for other
kinds of sexual conduct between consenting adults, such as prostitution,
bigamy and incest.
But the cultural victors in Lawrence would be well advised to understand that judicial
whimsy swings both ways. As Justice Antonin Scalia notes in his dissent,
the arguments the Lawrence majority gives for overturning
Bowers might just as easily be used for
overturning Roe: It's OK to disregard a precedent --
Bowers -- that is only 17 years old, especially
since it has been widely criticized and, by the way, because the culture
has changed. It would be the height of irony if some future Court were to
cite Lawrence as a reason for overturning Roe.
As Justice Scalia writes, "The court has taken sides in the culture
war," and both the Court and the country may come to regret it. Instead of
settling the issue of gay rights, yesterday's decision may only have
inflamed it.
