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In June of 1986, I put Nair in my brother’s shampoo. All of June. When I went to the baker’s, I would mash my hand into any cake in paw’s reach. At restaurants, I would eat with my hands and wipe my face on the tablecloths. I did whatever I wanted, despite the rules. In June of 1986, the Supreme Court decided Bowers v. Hardwick,declaring constitutional Georgia’s anti-sodomy laws. The Court did exactly what it wanted, despite justice. Clearly, I had something on the Court. Bowers deals with a constitutional challenge to Georgia’s anti-sodomy laws. Respondent (defendant) was a homosexual prosecuted for violating state anti-sodomy laws. In short, he was a gay man guilty of being gay. The decision is famed for its notion that law may be based strictly on cultural values of morality:
“Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on [my own] notions of morality.” [478 U.S. 186, 191 (1986)]

And it’s supposed to be a good thing when “notions of morality” are devoid of any rationale? Any moral notion requires some supplementary reasoning lest the opinion of a few shall make the law of the land — which is exactly what happened — e.g., “Murder is immoral, but a killing society isn’t a functional one.” See? It’s not that hard. No reason was presented for sodomy’s illegality other than the moral preference of those in power. The courts think they have what it takes to judge — indeed, define — what is moral in addition to what is just. Given that exactly one nonlawyer has been (abortively) nominated to be a Supreme Court justice, this is about as likely as Rehnquist sporting a rainbow sticker on his Court robes. Before, the Court would at least have to come up with some ostensible line of reasoning to explain that its decision was indeed based on some (separate but equal) rationale. Since Bowers, result-oriented decisions need only a moral basis — five justices’ subjective moral bases. The Court can decide as it wants without necessarily following strict legal reasoning. Writing, “I vote to overturn because I think homosexuals are an immoral bunch,” could only serve to explain the Court’s pseudo-rationale. The Phobic Five did not state: “We do not like gays. We will vote against them because we can.” But when you do whatever you want, gross loopholes form like pockmarks of guilt, childishness and boorish atavisms on the sullied face of justice. The Court’s hypocrisy takes the place of forthrightness. The real decision was: “We don’t like gays. Our morality tells us so. You can’t make us like gays. Our Constitution tells us so. Not only can we decide that we dislike gays, but we are, by definition, right in disliking gays because we have made it United States law that being gay is illegal.” I exaggerate or simplify, true? False. Writing the decision in such plain-spoken terms would not have changed the legal effects of the decision other than setting the precedent of the Court being honest with the people it oppresses. Georgia Code Ann. 16-6-2 (1984), the law in question in Bowers, defines sodomy as: “performing or submitting to any sexual act involving the sex organs of one person and the mouth or anus of another.” Gee, it seems possible that everyone of either gender and all sexual orientations might perform sodomy quite often. I’d go so far as to say sodomy may be America’s most common crime, outranking even speeding and income tax evasion. “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” [478 U.S. 186, 191 (1986)]. Well, aren’t wholesome suburban types — flaming heterosexuals — performing this heinous act all the time? Heteros have more fundamental rights than their subversive brethren. The loophole was egregious in its implicity. That sodomy laws are broken far more frequently by heterosexuals due to sheer numbers alone is obvious. “Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause.” [478 U.S. 186, 193 (1986)]. Sort of how the Court used to have a hard time “discovering new fundamental rights” such as blacks’ right to vote. Doesn’t this evoke memories of the rich not being penalized for income tax evasion? Whites not being punished as seriously for killing blacks as the converse case? Government agencies not being castigated for extortion? Courts not being taken to task for turning one-third of the federal government into the legal equivalent of a gay-bashing lynch mob? Will I have to learn to tie a noose in order to pass the bar? “This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable.” Id. at 191. But why should any law apply to gays and not straights? “It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy.” Id. What is homosexual sodomy but something that, when done by a homosexual, is illegal? “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” Id. Hey, does that mean that heteros do have a fundamental right to engage in sodomy? I might have enlisted for the Revolutionary War for that! As an epilogue: Though Powell, the swing vote in this 5-4 case, admitted he made the wrong decision, he could only tell The National Law Journal, “[Bowers] was not a major case, and one of the reasons I voted the way I did was the case was a frivolous case … just to see what the Court would do.” Losing rights ain’t frivolous. By failing to be either a good judge or an honest one in this case, Powell offers a lesson to the future judges of America: there are no frivolous cases. Taking every case seriously means putting aside personal preferences as well as being honest with oneself, as well as with the Americans whom a judge is purported to embody in his judgement and application of the law. The majority justices are guilty of a lack of honesty to the American people and perhaps to themselves. When you can do whatever you want, you don’t need to be straight with yourself about what you’re doing, who you’re hurting or the justice that is now the gum on your shoe. Free-lancer Mitch Artman lives and writes in Chicago.

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