abstract: The Lawrence decision reeks with moral teaching. It has become obvious that the federal judiciary needs more guidance than the laws of nature and of nature's God to supply God's view of the limits of government.

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by John Fielding

Having commented on the chorus of the usual suspects attacking Rick Santorum in the May-June 2003 issue of The Christian Statesman, it is apparent that the other shoe has dropped. If you recall, Santorum was commenting on the likelihood of unfortunate circumstances for societal control of adultery, incest, or bestiality if the notion of privacy was expanded to prevent states from passing laws regulating consensual sexual relations between homosexuals. In this, Santorum was echoing the reasoning of Justice Byron White in Bowers v. Hardwick.1 Well, in regard to that, the other shoe has dropped.

The recent U.S. Supreme Court decision in Lawrence v. Texas, while not entirely unexpected, was disappointing, nonetheless. It was not entirely unexpected because the underlying scenario was set up to permit a revisiting of the legal issues surrounding the factual predicate of its predecessor, Bowers v. Hardwick. Indeed, much of the Lawrence opinion is devoted to criticizing and overruling Bowers. In both cases, the police were called ostensibly to investigate other criminal activity and found, instead, two men engaging in sexual activity forbidden under relevant state statutes. Thus, both cases were transparently "set-ups" to provide test cases to challenge the state statutes.

On many levels, Lawrence v. Texas is a poor decision. First, and foremost, the Court has deprived the states of their ability to protect the public morality, stating that "[o]ur obligation is...not to mandate our own moral code." To the contrary, as I have pointed out elsewhere,2 a moral code is being mandated everyday in such decisions: the moral code that states that, on the surface, we are all disconnected individuals constituting our own moral universes, but really only grants admission to the club to those moral statements that ratify the idea of man at the center of those universes. God need not apply. In this, the Court has stood the usual constitutional analysis on its head.

The usual constitutional analysis subjects challenged state statutes to a three level analysis depending on the activities regulated. The most stringent, reserved for fundamental liberty interests, is "strict scrutiny," which requires an infringing state law to be narrowly tailored to serve a compelling state interest; the least stringent is the "rational basis" test. The rational basis test permits a state to regulate activity not implicating fundamental liberties3 if the activity is rationally related to a legitimate state interest. "Rational," in this instance, means "any rational basis for the law whatsoever."4 The reason this is relevant for the Lawrence case is that the majority opinion in Lawrence did not find a constitutional right implicated in the sexual activity regulated by Texas. Nonetheless, it struck down the law for the lack of a rational basis. The most obvious conclusion to be drawn from this is that Senator Santorum was right: if the Court cannot find a rational basis for a state's regulation of this kind of activity, it is difficult to imagine how a rational basis could be imagined for the regulation of any kind of private consensual activity.

Justice Scalia, in a stinging dissent, states as much:

Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce...a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U.S. at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"--which it undoubtedly is--and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.

Scalia further points out that the Supreme Court, in Washington v. Glucksberg, held that "only fundamental rights which are 'deeply rooted in this Nation's history and tradition' qualify for anything other than rational basis scrutiny under the doctrine of substantive due process." Scalia concludes:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas state, it says "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review (Emphasis suppled).

The reaction from the evangelical community has been the usual foolishness: all over the map. There was the usual claptrap about "pluralistic society," including one evaluation that the decision signaled "the loss of the idea that law is a moral teacher."6 But the Lawrence decision reeks with moral teaching: homosexual conduct is acceptable, and efforts to outlaw it are wrong.

The problem becomes one of the proper Christian solution. The first step, of course, is to decide whether homosexual activity is a sin and a crime and, therefore, deserves to be punished by the state at all. For the sake of this article, I will assume that this is the case.7 The issue then becomes one of structure: how does one enforce laws against this activity in the United States?

If one is a "states' rights" conservative, the answer is relatively easy: the federal judiciary has no business interfering in the states' efforts at regulating the morals of their own citizens according to the laws passed by the legislators representing the majority of the good citizens of each particular state. But what if the states do not pass moral laws, or, even worse, pass laws that are violative of the minority's rights? When this country was founded, despite Madison's misgivings,8 it was believed that the states were more effective protectors of individual rights. The events surrounding and the causes of the War Between the States proved this assumption unduly optimistic. States were able to be as oppressive of their citizens and residents as a central national government. The Fourteenth Amendment was passed to grant power to the federal judiciary to protect the individual rights retained by the people in the Ninth and Tenth Amendments against depredations by the states.9 It has become obvious that the federal judiciary needs more guidance than the "laws of nature and of nature's God" to supply God's view of the limits of government.

The National Reform Association exists to remedy that deficit. In contradistinction to Calhoun, who saw no individual rights existing antecedent to government, Madison saw rights existing in all individuals equally in the state of nature prior to the institution of governments by the consent of those governed. The problem is the notion of a "state of nature" existing apart from God's law, which defines the liberties and responsibilities of all individuals. The NRA calls upon the nation to recognize God and His law as the source of all liberties and responsibilities. In postbellum America, with a federal judiciary charged as it is with recognizing "fundamental liberties," it is more important than ever that our national documents recognize this authority. Without this, as is apparent from Lawrence v. Texas, we are morally lost as a nation.

John Fielding (M.A., M.Div., J.D.) is the president of the National Reform Association. He is active in politics and practices law in Berks County, Pennsylvania. He can be reached at fielding@talon.net.

Endnotes

1. 478 U.S. 186 (1986).

2. John A. Fielding III, False Pluralism (The Christian Statesman, Vol. 146 No.3 (May-June, 2003), pp. 3-4.

3. Whether the Fourteenth Amendment should apply the Bill of Rights to the states is another discussion for another day.

4. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

5. 521 U.S. 702 (1997).

6. Ted Olson and Todd Hertz, "Opinion Roundup: Does Lawrence v. Texas Signal the End of the American Family?" (Christianity Today; ChristianityTo-day.com, Week of June 30).

7. The biblical treatment that I prefer is found in Greg L. Bahnsen, Homosexuality: A Biblical View (Grand Rapids: Baker, 1978).

8. Federalist No. 10.

9. Whether it has been used effectively toward that end is, of course, open to considerable debate.

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