AUSTIN -- Congratulations to the Supreme Court on its 6-3 decision in the Texas sodomy law case and to all those, including the gay rights groups and the American Civil Liberties Union, who have fought so long and hard to rid the legal system of this manifest injustice. The Sunday chat shows featured a number of curious contentions over this legal decision: It was interesting to see rank bigotry against gays trying to disguise itself as a legal argument.
Justice Antonin Scalia was foremost in this camp, throwing a public tantrum devoid of legal reasoning over the decision. Talk about lack of judicial temperament. Some advanced the argument that the law should have been left in place because it is rarely enforced. In fact, it was enforced, that's why there was a case in front of the Supreme Court, and under what principle is rarity an excuse for injustice? Because we relatively rarely execute people who are innocent, does that make it right? Slavery rarely occurs in this country, but it is still illegal.
The slippery-slope argument is almost as silly. The law is full of more or less arbitrary lines and distinctions. The difference between a felony and a misdemeanor in theft is one penny. The difference between a felony and a misdemeanor in drugs is one ounce. For that matter, the difference between a pig and a hog is one pound. To take another notorious Texas law, if you own six or more dildos in this state, you are a felon, presumed to have intent to distribute. Whereas if you have five or fewer, you are merely a hobbyist. Hence, setting aside a law against homosexual sodomy in no way invalidates laws against incest, pedophilia, etc., and to say it does is stupidly alarmist.
George Will advanced the theory that the court was in fact merely making an arbitrary distinction, drawing a line as legislatures do, when it is supposed to be deciding matters of constitutional principle. His argument was that the Court has usurped the right of legislatures in this area, that social mores need more consideration. The same argument was used against Brown v. Board of Education. Libertarians like William Safire contend that the principle here is that the government has no right to come busting into people's bedrooms, that we do have a right to privacy. It's hard to think of anything more intrusive than having your door shoved open by the police while you are engaged in sex.
It seems to me there is another constitutional principle at issue: The constitution of the United States was designed to protect the rights of minorities against the majority. The law is supposed to apply equally to all, and under the Texas statute it did not; it was specifically discriminatory.
We can count on the religious right to mount a great fuss now over the proposition that "Gay marriage is coming." I see no causal connection between this decision and gay marriage -- again, the law is full of distinctions.
Justice Scalia's intemperate outburst -- he said the Court has signed on to "the so-called homosexual agenda" -- brings up the question: What the heck is the homosexual agenda? I hear people on the right talk about it all the time, but as I far as I know, gay groups have not signed on to any master plan or series of proposals. Has anybody seen one? There are a lot of gay Republicans: I should think all the gays would have a hard time agreeing on an agenda. I suspect the "homosexual agenda" is like the Protocols of the Elders of Zion.
Scalia is not the only justice to wing off into the ozone lately. Poor Clarence Thomas threw a hissy fit over the University of Michigan affirmative action case (affirmative action, yes: by the numbers, no). Affirmative action was always supposed to be about finding qualified minority applicants for jobs, colleges, etc. The key word is qualified. This is another case where the wing-nuts on the right have managed to completely distort reality by carrying on about "quotas," as though they existed. (Anyone who has ever been to a Republican district or state convention and watched how the few blacks there are almost automatically elected delegates will be amused by this.) Thomas wrote a dissent in the Michigan case that was autobiography, not legal reasoning. He felt others at Yale Law School looked down on him as a "minority admission," therefore, everyone else of his color must feel the same way.
The proof is in the pudding -- minority students at Michigan and Yale graduate at the same rate as whites, ergo, they're qualified, they can do the work. That many of them have had to overcome backgrounds as poor as Justice Thomas's can only be considered to their credit by any fair-minded person. Rather than assume a black student at Yale Law School got in solely because Yale wants "aesthetic diversity," I would assume he or she must be a truly exceptional young person.