Slouching Towards Gomorrah

by Robert H. Bork

  The majority opinion continues the tradition of incoherence in these matters. Although it purported to apply a clause ratified in 1868 (and taken verbatim from the Fifth Amendment, ratified in 1791), the majority opinion said, “we think that our laws and traditions in the past half century are of most relevance here.” In 1955, for example, the American Law Institute, an unofficial organization of lawyers, stated that its recommended Model Penal Code did not advocate or provide for “criminal penalties for consensual sexual relations conducted in private.” In 1957, in the Wolfenden Report, a committee established by the British Parliament recommended repeal of laws punishing homosexual conduct, and ten years later Parliament complied. The puzzle is twofold. There is no explanation of why recent events of the last fifty years are relevant to the meaning of a constitutional amendment over one hundred and thirty years old, nor why recommendations about legislation in the United States and Britain should affect the meaning of the United States Constitution.

  Even more puzzling was the Court’s statement:

  Of even more importance,…the European Court of Human Rights considered a case….[in which] [a]n adult male resident in Northern Ireland alleged that he was a practicing homosexual who desired to engage in homosexual conduct. The laws of Northern Ireland forbade him that right…. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights.

  This was said to show the falsity of the premise that the claim to a right to engage in homosexual conduct was insubstantial in Western civilization. Justice Kennedy also cited the trend in American states to decriminalize homosexual conduct.

  None of this should be taken as serious constitutional analysis. Whatever the ALI and the Wolfenden Report said, however the Court of Human Rights sitting in Strasbourg decided under its law, and however many states decided to decriminalize homosexual sodomy, the fact remains that Texas had a right to make its own moral judgments unless something in the federal Constitution denied that right. And it is here, in the attempt to muster a constitutional rationale for its decision, that the Court majority opinion floundered most abysmally.

  That effort began, amazingly, with a repetition of the same mystery-of-life passage from Casey mentioned earlier, as though it had some discernible meaning:

  In explaining the respect the Constitution demands for the autonomy of the person in making these choices [about marriage, procreation, contraception, family relationships, child rearing, and education], we stated as follows:

  These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

  Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexuals do.

  These words defy explanation just as they defy any attempt to guess what the concept of constitutionally guaranteed liberty might cover. This passage, discussed in chapter 6, is at best a blank slate on which anything may be written at the pleasure of the justices. The wonder is that this empty incantation, despite having been endlessly ridiculed, should now be relied upon once more as the opening gambit in what purports to be a constitutional argument.

  Justice Kennedy went on, with the approval of four colleagues, to quote Rower’s conclusion that the provision of the Colorado constitution denying localities the right to make homosexuals a specially protected class, along with racial minorities, by claiming that “the provision was ‘born of animosity toward the class of persons affected’ and further that it had no rational relationship to a legitimate governmental purpose.“26 This denies the right of government to enact the judgment of its citizens that some behavior is immoral and harmful. That is not a proposition that can be applied across the board; moral judgments are the stuff of legislation.

  The opinion went on to offer an utterly unpersuasive assurance. This case, the Court said, “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” That means that Lawrence does not decide the question of same-sex marriage as a constitutional right. But, of course, it does. The principle of radical personal autonomy upon which the case rests necessarily means that the state may not deny homosexual couples a marriage license. We are entitled to suspect, indeed to be certain, that that is precisely what the Court majority is leading up to.

  It is abundantly clear, then, that a majority of the Supreme Court no longer considers itself a constitutional court—one highly respected federal judge said to me that Lawrence v. Texas means that the Constitution is simply gone. Instead, the Court majority has made itself into a secular papacy, the final authority on matters of faith and morals. We may, therefore, assess its performance on those grounds as well.

  One issue posed by the normalization of homosexuality, which Lawrence largely accomplishes—the only step remains is the creation of a constitutional right to homosexual marriage—is whether as a society we want a significant increase in the number of homosexuals. Other arguments are largely beside the point. Homosexuals argue that allowing them all the rights of heterosexuals, including the right to marry, is simply a question of justice, of the equal protection of the laws. That argument leaves out of account the effects of normalization on individuals and on society. It would have force only if there were no serious adverse effects from homosexual behavior. There are such effects, however, and we are entitled to consider them.

  We may begin at the personal level. How many fathers and mothers are pleased or even indifferent to whether their sons and daughters grow up to spend their lives as practicing homosexuals? Very few, if any. They may love their child regardless, but they are not happy about the direction taken by the child’s sexuality. There are excellent reasons for that unhappiness. Perhaps there is revulsion at the nature of homosexual acts, perhaps sadness that there will be no grandchildren, perhaps a well-founded fear of the dangers of a homosexual life, or perhaps the reasons for unhappiness about the child’s homosexuality are never fully articulated in the minds of the parents. Still, there is, as Leon Kass said in opposition to human cloning, the “wisdom of repugnance.“

  The issues to be confronted, then, are whether complete acceptance of the normality of homosexual behavior would lead to an increase in the number of homosexuals and whether there are good reasons to resist any policy that leads to unqualified approval of homosexual behavior. I think the answer to both of these questions is yes. The subject for discussion is not a degree of tolerance, which seems to me appropriate and humane, but full acceptance, which is neither.

  To address the first issue, if homosexual marriage completes the normalization of homosexuality that is now racing forward, there will be more homosexuals in the population, probably very significantly more. There is not a “gay gene,” but there are very probably genetic factors, along with environmental influences in the womb or in early life, that create greater or lesser predispositions toward homosexual behavior. Like other predispositions, toward alcoholism, for example, the urge to homosexual conduct can often be resisted, and a significant number of homosexuals respond to therapy that enables them to live contentedly as heterosexuals. The willingness to resist or to seek therapy will certainly be affected by the degree of stigma attached to the behavior in question. If all traces of taint are removed, if homosexuality is made to seem completely normal, a matter of indifference to anyone else or to society, young men and women uncertain of their sexuality will be that much more likely to be drawn into a homosexual life. There will surely be some young men and women who will not be deterred from homosexuality by any degree of stigma, just as there will be some who are deflected by quite mild degrees of social disapproval. There
could hardly be a stronger signal from society that homosexuality is perfectly normal and acceptable than the creation of a right to homosexual marriage.

  The next question, therefore, is what would be so calamitous about removing all restraints on homosexual behavior? The answer is, a great many extremely unhappy consequences would follow.

  The first of these is the severe distress inflicted upon many individuals who choose, or are led into, the homosexual way of life. Though many homosexuals would deny it, homosexual males are much more likely to lead unhappy lives than are heterosexuals. Homosexual males engage in substance abuse and suffer mood and anxiety disorders, and major depression, as well as considering and actually attempting suicide, at rates far greater than do heterosexual males. Homosexual apologists attempt to explain these facts by citing the pressures of discrimination. But the rates are similarly high in the Netherlands and New Zealand, two countries known as homosexual-friendly. Thus, in the Netherlands the prevalence of mood disorders among homosexuals was 39 percent and among nonhomosexuals 13.3 percent, a ratio of about three to one. For anxiety disorders, the numbers were 31.7 percent as opposed to 13.2 percent; and major depression, 39.3 and 10.9 percent.27 A study in New Zealand found the numbers for homosexual and nonhomosexual thoughts of suicide to be 67.9 percent and 28 percent, while those for suicide attempts were 32.1 and 7.1 percent.28

  Psychiatrist Jeffrey Satinover reports, “In spite of its superficial appeal and the activists’ repeated claims, no studies support the hypothesis that the social disapproval of homosexuality is the prime cause of the high levels of internal distress evident in homosexual populations, even long before AIDS.“29 Richard Fitzgibbons, a clinical psychologist specializing in anger management, notes that a child’s anger at felt betrayal by his peers or father is “one of the major reasons a notable element of sadomasochism is found in homosexual practices. When the extreme sadomasochistic behaviors engaged in by homosexual men are reported, most people are shocked…. If the same type of behavior took place among heterosexuals, the identical acts would be considered forms of abuse and evidence of a disorder, yet they are considered ‘normal’ among homosexual men.“30 Homosexuality, moreover, is an addictive disorder. As Dr. Fitzgibbons notes, “The first men diagnosed with AIDS reported an average of one thousand partners during their lives. Those who have researched the HIV-AIDS epidemic have noted that some homosexual males actually have five to ten sexual encounters in a single night.” “The person has often attempted to fill the emptiness experienced in childhood or adolescence with numerous sexual encounters but it is an emptiness that is never satisfied sexually.“31 It is no wonder that he says, “Involvement in a homosexual lifestyle starts many young men down a clear path of self-destruction.“

  These manifestations of psychological distress that seem frequently accompany homosexual conduct make the use of the word “gay” absurdly inappropriate. Psychiatrist Joseph Nicolosi calls it “a self-deceptive identity” that has been “brilliantly marketed and bought without question by the most influential institutions—professional psychology and psychiatry, churches, educators, and the media—of American society.“32 The term “gay” makes homosexuality sound innocuous, if not appealing, but it hides the terrible reality that so many homosexuals experience.

  It may be too soon for reliable studies of the effect upon children of adoption by homosexual couples. Common sense suggests, however, that apart from proselytizing and pedophilia, which it strains credulity to rule out, the adopted child of a homosexual couple is more likely than a child adopted by a heterosexual couple to turn to homosexuality himself. If nothing else, that result

  seems likely because of the natural admiration of the child for its parents. It can hardly be supposed that a young boy whose fathers sleep with each other would not often come to see such an arrangement as natural and, indeed, to be emulated.

  Facts such as these should be sufficient, standing alone, to justify efforts to deter youths from engaging in homosexual behavior. But there is, of course, more: the ravages of disease that homosexuals suffer far more than do heterosexuals. The best known is AIDS. In addition to AIDS, however, active homosexuals have high rates of hepatitis, gastrointestinal infections, cancer, and tuberculosis. Women have higher rates of bacterial vaginosis and breast and ovarian cancer. The incidence of violence is also high within homosexual relationships.

  But there is more than the personal tragedies of homosexuals and their families to the argument against the normalization of homosexuality. There are, for one thing, the harmful effects on the institutions of marriage and family of recognizing homosexual relationships as marriages. The location of the line that separates the moral from the immoral is always, to some degree, arbitrary in the sense that a narrow rationalist argument can be made for moving the line in one direction or the other. After all, shortsighted rationalists may and do argue, a stable, loving, sexual relationship between men is not different in principle between the same sort of relationship between a man and a woman. The mechanics of the sexual activity differ, to be sure, but the principle is the same. That is false. The moral line between heterosexuality and homosexuality has been drawn for good reason. For thousands of years civilizations have drawn that line, and it has all the legitimacy that tradition, religion, and concern for the persons directly involved and for the rearing of children can confer. There is no other line regarding sexuality as firmly rooted as this one. But once that line is breached, there is no other line, no fallback position, of any remotely comparable strength. William Bennett was entirely correct: “Say what they will, there are no principled grounds on which advocates of same-sex marriage can oppose the marriage of two consenting brothers. Nor can they (persuasively) explain why we ought to deny a marriage license to three men who want to marry. Or to a man who wants a consensual polygamous arrangement. Or to a father and his adult daughter.“33

  By the same token, Sen. Rick Santorum was correct when, in anticipation of the Supreme Court’s decision in Lawrence v. Texas, he said that “if the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. All of those things are antithetical to a healthy, stable, traditional family.” That statement was immediately denounced by Democratic senators, homosexual groups, and some Republicans as “shameful,” and there were calls for Santorum’s resignation as Republican conference chairman. Many came to Santorum’s defense by pointing out that Justice Byron White’s majority opinion in Bowers v. Hardwick (1986) stated that “It would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.” There were no calls at the time for Justice White’s resignation from the Supreme Court, nor should there have been. Santorum was right, just as White and Bennett were right. A line is being crossed, and there is no other line to separate moral and immoral consensual sex that will hold.

  Many consider such fears laughable: it is said, for instance, that no one would ever advocate a right to polygamy. The fact is that some do. More instructive for present purposes is the erosion of the taboo against homosexual pedophilia. That taboo remains powerful in the general public—witness the outrage over the homosexual abuse of young boys and male adolescents by homosexual Catholic priests—but it is eroding among some homosexuals and cultural elites, an erosion that resembles the process by which homosexuality has been raised from obloquy to tolerance to a status close to normalization in the past few decades. I can do no better than to urge the reading of two articles by Mary Eberstadt, “Pedophilia Chic,“34 and “‘Pedophilia Chic’ Reconsidered: The Taboo Against Sex with Children Continues to Erode.“35 Eberstadt writes in the first article: “In one corner, enraged parents from across the country screaming for help in protect
ing their children; in the other, desiccated salonistes who have taken to wondering languidly whether a taste for children’s flesh is really so indefensible after all. And they wonder why there’s a culture war.” In the second, she makes it clear that the pedophilia in question is about boys, not girls, and “this ‘question,’ settled though it may be in the opinions and laws of the rest of the country, is demonstrably not yet settled within certain parts of the gay rights movement. The more that movement has entered the mainstream, the more this ‘question’ has bubbled forth from that previously distant realm into the public square.“

  “About pedophilia,” Eberstadt concludes, “there remains one and only one proposition that commands public assent. It is this: If the sexual abuse of minors isn’t wrong, then nothing is.“ That same statement could have been made about homosexual conduct a few decades back. Perhaps it is not too far-fetched to imagine that some activist homosexuals, like the North American Man Boy Love Association (NAMBLA), will ultimately decrease resistance to homosexual pedophilia. Observe the punishments visited upon the Boy Scouts—denunciation, withdrawal of corporate support, etc.—for refusing to allow an active homosexual adult male to be a leader of young Scouts, and that despite the obvious fact that a general rule permitting such a role would undoubtedly lead to homosexual pedophilia in a number of cases. That many homosexuals roundly condemn pedophilia does not alter the fact that homosexual pedophilia is increasingly thinkable among many Olympians, and thus may become more common.