Defending the Indefensible. How many
right-wingers are willing to argue that gay sex should be outlawed
and sexually active gay people prosecuted and sent to prison?
Probably not many, but count on a good number trying to support
sodomy laws (now once again before the Supreme Court) as serving
some useful function, such as "upholding morality," while not
actually encouraging that they be effective enforced. Still others
will hold that it's a matter best left to states legislators, as if
there were simply no federal Constitution to provide equal legal
protection to a subset of the citizenry disliked by local
bigots.
Already, we"re seeing headlines such as "Governor
defends ban of same-sex intercourse," wherein Texas Gov. Rick
Perry said of his state's law to punish same-sex couples for having
sex, "I think our law is appropriate that we have on the books."
Then why not really enforce it, Governor?
Wrong About Everything. The New York
Times has a story today about Justice Lewis Powell, who during
his time on the Supreme Court managed to consistently oppose the
fundamental principle of equality before the law and equal
treatment for all by the state and its institutions (that's my
take, not the opinion of the Times!). Of Powell, who died in 1998,
his
embrace of racial diversity as a valid goal in [state] university admissions, expressed in a solitary opinion in the 1978 Bakke case to which no other justice subscribed, not only established a rationale for affirmative action but frames the current debate a generation later.
Powell was also the deciding vote in Bowers v. Hardwick, the
sodomy law case. His fellow liberals expected a supporter of
race-based preferences to side with them. But Powell, we're told by
the Times, had
no personal experience with gay rights and found the issues raised by the case confusing and somewhat threatening. "I don't believe I've ever met a homosexual," he told one of his law clerks while the case was pending. "[T]he law clerk, who in fact was gay, told the justice, "Certainly you have, but you just don't know that they are." "
A book published last year on the history of the gay rights issue at the Supreme Court, "Courting Justice," by Joyce Murdoch and Deb Price, asserted that there have been at least 22 gay law clerks at the court, and that in each of six consecutive terms in the 1980's, one of Justice Powell's four law clerks was gay. "Doubts still gnaw at Powell's ex-clerks about whether they could or should have done more to educate him," the authors wrote.
And indeed they should have.
For what it's worth, Powell later indicated he had probably
erred.
On rereading the case, "I thought the dissent had the better of the arguments," he told a reporter in 1990.
That and a buck fifty will get you a cup of coffee. Thus, the
legacy of liberal Justice Lewis "through in the towel" Powell,
supporter of university admissions by skin color, and of sodomy
laws -- two issues once more before the High Court, which has a
chance to set right what it previously did so wrong.
--Stephen H. Miller