This is what constitutional law has come to. On Monday, a six-person majority of the Supreme Court held that America's traditional and majority opposition to homosexuality is bigotry akin to racism. The court held that this is not just a moral principle to which it subscribes, it is a principle suddenly excavated from the Constitution, a principle to which the nation must conform. So although a state may (under a 1986 ruling, mendaciously unmentioned by the majority) constitutionally criminalize homosexual conduct, it is suddenly unconstitutional for a state to prohibit granting special protections to homosexuals.
The six justices (Anthony Kennedy writing, joined by John Paul Stevens, Sandra Day O'Connor, David Souter, Ruth Bader Ginsburg and Steven Breyer) said all this when they held that the U.S. Constitution's guarantee of "equal protection of the laws" was violated when the people of Colorado enacted by referendum an amendment to their state Constitution prohibiting state and local laws banning discrimination based on sexual preference. Justice Antonin Scalia, dissenting and joined by William Rehnquist and Clarence Thomas, noted the majority's "heavy reliance on righteousness rather than judicial holdings," and accused the majority of concocting a constitutional impediment to a legitimate and traditional social goal, that of preventing "piecemeal deterioration of the sexual morality favored by a majority."
In 1992, a majority of Coloradans became provoked by the aggressive and successful campaigns of homosexuals and bisexuals for state and local laws protecting them against discrimination in jobs, housing, public accomodations and other transactions. Supporters of the amendment said such laws violate privacy, associational, religious and economic rights and liberties, and cumulatively constitute endorsement of the idea that homosexuality is a matter of moral indifference.
Colorado's Supreme Court declared the amendment an unconstitutional infringement of the right of homosexuals to "participate" in the political process. But the amendment did not prevent homosexuals from pressing their agenda. It simply meant that to do so, they must counter the success of their opponents by amending the state Constitution. (The court's reasoning has preposterous implications. For example, by that reasoning the Establishment Clause of the First Amendment is incompatible with the "equal protection" guarantee because a class of people defined by a single trait - people who favor establishment of religion - are denied equal "participation" in politics because in order to achieve their agenda they must amend the Constitution.)
In affirming the Colorado court's decision, the Supreme Court stressed that the amendment was a mere act of "animosity" against homosexuals, unrelated to a legitimate government purpose. The court said it is "impossible" to believe that Coloradans really were worried about their associational rights, and implies that protecting traditional social mores is not a legitimate governmental goal.
The court falsely asserted that the Colorado amendment's disqualification of a class of persons identified by "a single trait" from the right to obtain specific protection in the law is "unprecedented." Under the Arizona, Idaho, Utah, New Mexico, and Oklahoma constitutions, polygamy is prohibited. Since Monday, either those provisions are unconstitutional or polygamists have fewer constitutional rights than homosexuals.
Homosexuals, Scalia argued, have the right of all Americans to seek, as they have done, to use democratic persuasion to change the legal system for "reinforcement of their moral sentiments." But they should be subject to democratic countermeasures, such as Colorado's amendment, which was a "modest attempt ... to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of the laws."
The court, says Scalia, has departed from anything recognizable as constitutional reasoning. Instead, it has taken sides in a cultural struggle on behalf of the views prevalent in a particular class and against the views represented in Congress, which has repeatedly refused to extend to homosexuals the protections of federal civil rights laws.
Because the Constitution is silent on this subject, "it is left to be resolved by normal democratic means," Scalia wrote, and the court "has no business imposing upon all Americans the resolution favored by the elite class from which the members of this institution are selected, pronouncing that 'animosity' towards homosexuality is evil."
To what has constitutional law come? "Terminal silliness," says Scalia. Monday's decision indicates that the condition is indeed terminal if constitutional law is supposed to be the application of principles derived from a respectful reading of the Constitution's text, and an interpretation of its structure, in the light of the Framers' intentions.
It's encouraging to see George Will's recognition that sheer consistency demands that polygamists should be at least as well protected by the law as homosexuals. It is discouraging to see him following this line of thought merely in order to argue that gays should be less protected than they are.
It seems the entire cartel of conservative columnists has agreed to invoke the spectre of legalized polygamy as a way of frightening people into opposing gay rights. William Bennett waves the same scarecrow in his article which followed close on the heels of Will's. Both writers appear to believe that the notion of committed, fidelitous poly marriages is so abhorrent to "the majority" that associating gay rights with it is an effective form of mudslinging.
Whether they're right or not, it's clear that any poly rights movement has a much more difficult struggle ahead of it than even the gay rights movement has had.
Will's argument about people who "favor establishment of religion" is of course totally spurious. That class includes adherents of a number of different religions, and there is no way to simultaneously establish all of them as the state religion. I defy Will to draft a piece of proposed legislation which would grant equal protection to all members of that class. It isn't possible. The Framers recognized this and wisely prevented any one sect from using the mechanisms of government to gain an unwarranted (and necessarily oppressive) ascendency.