Justice Kennedy is no genius, but in Lawrence v. Texas he did make some interesting conceptual moves:
- He cited and relied on the often-derided “mystery passage” from Planned Parenthood v. Casey: “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 Justice Scalia notes in his dissent, this claim, that the world has no fixed meaning, either proves nothing at all or destroys all jurisprudence.
- He relied on cases from the European Court of Human Rights and a brief from Mary Robinson, former UN High Commisioner for Human Rights, to establish that
“The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”
The law of other countries thus becomes our rightful constitutional standard. For more on Lawrence, foreign rulings, and the Robinson brief, see the latest C-FAM Friday Fax.
Put together, what these moves demonstrate is a disposition on the part of the majority to base law not on the particularities of American law and tradition, or on the enduring understandings underlying such things, but on abstract universal concepts that in fact reflect a kind of official nihilism, and on the evolving understandings of transnational elites.
I have no desire to entrust my country’s freedom and well-being to such things. Only tyranny can result from the view that arbitrary will defines the meaning of things, and that we should be ruled by cosmopolitan elites who can, in the nature of things, be responsible to no one but themselves. The tendency to cut the link between American law and America, and anchor it instead in some combination of ideology and universal expert consensus, is real and it must be resisted every step of the way.
[UPDATE FROM CORRESPONDENT: If future Supreme Court decisions involving “gay rights” are based on what the European Court of Human Rights has held in similar cases, the following cases become relevant:
- Lustig-Prean & Beckett v. United Kingdom; Smith & Grady v. United Kingdom; Beck, Copp & Bazeley v. United Kingdom; Perkins & R. v. United Kingdom: investigation into homosexual military personnel’s private sexual conduct and expulsion from military on basis of homosexuality held violative of right to privacy.
- L. & V. v. Austria; S.L. v. Austria: Criminalization of private male homosexual conduct held violative of right against discrimination in light of non-criminalization of sexual conduct by lesbians and heterosexuals of same age.
- DaSilva Mouta v. Portugal: Removal of child from gay father solely on basis of his homosexuality found violative of right against discrimination.
- A.D.T. v. United Kingdom: private, consensual adult male homosexual conduct with multiple partners (i.e., orgy) protected under right to privacy.
There also is abundant ECHR case law on the rights of “transgendered” persons that is more complicated and evolving.
One possible consolation: it appears that under the last case that the Elks in New Hampshire could regain the right to exclude female members simply by announcing that one of the purposes of the club is to engage in homosexual orgies involving all members.]