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Protecting Us From Ourselves

The Supreme Court has it right

The radical gays and the Jesus freaks are at each other's throats again, and that should scare anyone with an intelligence quotient above room temperature. For the past three years, only the Supreme Court has stood between them and the rest of us, and it has defended the American way of life well. In the process, the court has also kept these zealot boobs from doing irreparable harm to their own rights to privacy and free speech.See, the radical gay lobby and the radical Christian lobby have one critical thing in common. These people are willing to trash the Constitution to win the petty legal skirmish of the moment at any cost, long-term legal implications be damned. That's what makes them so dangerous.

To understand the big picture, you've got to go back to April 2000, to the Supreme Court's decision in Boy Scouts of America v. Dale. At the moment, it's easy to forget that the same supposedly "liberal" Supremes who just overturned a Texas sodomy law were the very same folks who upheld -- correctly -- the BSA's right to eject an assistant scoutmaster from their organization because of his open homosexuality.

Gay rights activists may still cringe over that decision, because many still hold the belief that it was about them. It wasn't. Those who've actually read this decision understand that it was about the Boy Scout's First Amendment right to expressive association. In that ruling, the court found that government actions -- in this case a state law prohibiting discrimination -- amounted to an "intrusion into a group's internal affairs by forcing it to accept a member it does not desire." Dale's presence would affect the Boy Scouts' ability to advocate its own public or private viewpoints, the court said.

Had Dale won this suit, private, non-profit gay activist groups could have been forced to admit as members Christian Bible thumpers hostile to their cause and to make all group activities open to them. The disastrous implications for other interest groups are obvious. But the court stood between us and them, and in the end, everyone won.

The same could be said of the court's recent decision to strike down a Texas sodomy law and similar laws in other states along with it. While media ideologues from both the right and the left have over-simplified this as a gay rights victory -- which naturally sells more papers -- it was much more than that. This was a tremendous victory for privacy, in particular for the sexual privacy of all Americans. Though most people probably didn't realize it, in one bold move, the Supreme Court threw the government out of the American bedroom, once and for all.

In its ruling in Lawrence v. Texas, the majority of the Supreme Court found that the state had no legitimate interest in barring forms of private sexual conduct and it recognized for the first time a right to liberty in sexual relations. While most media attention has gone to the fact that this ruling strikes down anti-sodomy laws that target gays, little attention has been given to the fact that it also effectively strikes down laws barring all manner of sexual intercourse between consenting adults in the privacy of their homes. That includes laws prohibiting intercourse between unmarried adults, laws barring all sexual positions but missionary style and laws barring fellatio, among other things.

Much of the media also neglected to explain that in the Lawrence case, the court declined to find the Texas sodomy law unconstitutional under the equal protection clause or to recognize homosexuality as a fundamental right, although it could have. Instead it relied exclusively on the right to due process and something called the rational-basis test, which requires that states show a legitimate state interest when passing laws governing non-fundamental rights. In the past, states had often used morality -- as in the morality of some -- as a legitimate state interest. What the court did in Lawrence was reject morality as a basis for legislation under the rational-basis test. The bottom line is that states will now have to come up with a more compelling, legally sound reason for intruding into the privacy of folks' bedrooms -- or anywhere else for that matter -- than the morality of some. For those who wish to restrain government tyranny of all sorts, and the majority of us fall into that category, this was a legal victory for both privacy and freedom.

In the end, the fate of the rights of Christians and gays to live their lives the way they see fit and to share and pass on their belief systems are inextricably intertwined. Because of the controversial nature of those belief systems, the two groups have always been among the first to suffer tyranny at the hands of oppressive governments and dictators.

When the Supreme Court protects us from them, it is also protecting them from themselves, and that, if anyone cares to remember, is exactly what the founding fathers created the court to do.

Contact Tara Servatius at tara.ser

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