I was asked whether Christian doctrine should shape our laws. My answer is that it used to but recently the majority decisions of the U.S. Supreme Court have declared that concern for liberty for the individual or a class of people is more important than moral considerations. In 1986 Supreme Justice Warren Burger’s concurring opinion in Bowers v. Hardwick, which upheld the constitutionality of an Alabama law against sodomy, agreed with Justice Byron White who said that the Constitution does not confer “a fundamental right to engage in homosexual sodomy”. Burger wrote:
“The proscriptions against sodomy have very ‘ancient roots’. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law…. During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone [Commentaries on the Laws of England] described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act…. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millenia of moral teaching.”
Robert R. Reilly in his survey of court rulings in MAKING GAY OKAY, How Rationalizing Homosexual Behavior Is Changing Everything, writes that “Cast aside millenia of moral teaching” is exactly what the Lawrence v. Texas ruling did in 2003, seventeen years after Bowers. This decision declared a Texas statute “forbidding two persons of the same sex to engage in certain intimate sexual conduct” unconstitutional and, in order to do so, overturned the Bower ruling. Justice Kennedy claimed that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct” upon which the state should not intrude. In other words, liberty is defined as making up your own moral universe. It has nothing to do with morality or the U.S. Constitution. In another case concerning abortion rights (Planned Parenthood v. Casey 1992) the court found that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As Reilly comments, “Liberty does not mean freedom to choose what is right; it means becoming the source of what is right. It means not conforming oneself to what is good, but making up one’s own good.” (p.81)
According to this logic there would no seem to be a basis upon which to disapprove of any sexual variation performed privately. The state is indifferent as to whether one succumbs to a disordered sexual appetite, so long as he does it privately and freely.
Why did it take more than two centuries for the court to discover this right? Because, it says, the Founders did not know the manifold possibilities of liberty!
In 1878 the Supreme Court was offered an opportunity to change the sexual mores and laws of the country by judicial fiat. In Reynolds v. United States the court outlawed polygamy. But today such a ruling would be considered oppressive to the liberty of polygamists.
The Lawrence opinion delivered a tremendous blow to the rule of law and its relationship to sexual morality. In his dissenting opinion Justice Scalia pointed out the profound problem with this ruling:
“State laws against bigamy, same-sex marriage, adult incest, prostitution,… adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision.”
Should our laws reflect our moral convictions? When should our obedience to God and his laws limit our liberty? How does removing legal penalties on behavior encourage acceptance of such behavior as legitimate?