Immoral Maxim #9: Gay Rights & Amendment IX

Immoral Maxim & Repartees #9: Unenumerated Rights: Homosexual Sodomy and Gay Rights

Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Immoral Maxim #9a & #9b: “But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers”. Romer v. Evans (1996) Scalia dissenting

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices.” Lawrence v. Texas (2003), Scalia dissenting

An Abiding Principle:

“While this Court has had little occasion to interpret the Ninth Amendment, 6 "[i]t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174.


According to the 9th Amendment the Constitution shall not be used as a pretext to deny American citizens the full panoply of their God given rights and/or the privileges of citizenship. Over the past few decades it has slowly becoming evident to the American people that a persistent minority of human beings are sexually attracted without malice to others of their own sex. These complex emotional responses are, of course, socially mediated, but in addition it is becoming apparent that they contain a genetic component as well. Accordingly, within the general population (esp. the young) and in some legal circles a consensus is emerging that all adults have a right to consensual sexual behavior within the privacy of their own homes, a right unenumerated in the U. S. Constitution. In my own opinion, the most straightforward way to legally honor the dignity of relationships between same sex partners would be to explicitly declare that the rights of marriage and privacy accepted both legally and unconsciously for married or sexually active partners of differing sexes are Constitutionally required by the Ninth Amendment. In point of fact, of course, legal, legislative, and constitutional controversies about “gay rights” take place on a variety of fronts. I prefer to discuss the issue in these terms, however, because it is certainly true that before the adoption of the Constitution and during most of our history as an independent nation, most Americans have thought that sexual relationships between members of the same sex were immoral and, usually, illegal. While the extent of legal prosecution has diminished during the past centuries, “homosexuality” has frequently resulted in imprisonment. During colonial times, “homosexuals” were occasionally executed for “sodomy,” usually referring to what we today call anal or oral sex. So, to declare that “gays and lesbians” have the right to practice their individual form of consensual sex is to explicitly reject a significant component of past custom, morality, and law. And, of course, to reject the beliefs of a significant fraction of the contemporary American public. [F 9-1]

Scalia’s views are well known. Probably his most important legal opinion on the subject of consensual sex between adults of the same sex was his dissent for three justices in Lawrence v. Texas (2003) when the Supreme Court struck down Texas’s law against homosexual sodomy. In this decision, the Court also reversed Bowers v. Hardwick (1986) which had upheld a Georgia anti-sodomy law which had been applied only against gay men. Scalia also offered some very vituperative commentary in his dissent in Romer v. Evans (1996) when the Court struck down an anti-gay amendment to the Colorado Constitution. Characteristically, in Scalia’s Romer dissent he baited the Court for not openly overturning Bowers. Sure enough, in 2003, the Court overturned Bowers. In the Appendices I chide Scalia for both Casuistry (Appendix E) and Silliness (Appendix S) in his Lawrence opinion. Suffice it to say here that the fusion of Scalia’s religious and political prejudices and predispositions are quite evident.

Scalia’s general and quite skeptical and disparaging views on the Ninth Amendment have also been expressed on several occasions. Thus in Troxel v. Granville (2000) Scalia denied the ‘fundamental rights of parents’ to make important decisions. In effect, the Ninth Amendment is another dead spot in Scalia’s Constitution. [F 9-2] Here the limitations of Scalia’s methodology are in play. Since he does not admit consciously that tensions in the nation’s understanding of important principles inevitably give rise to changes in our conscious and unconscious understanding of those principles he reverts to invective when those changes shift the ‘firm ground’ on which he thought he was standing.

Explicit use of the Ninth Amendment in legal and Constitutional thinking has been unusually sparse. Perhaps the most important instance was Author Goldberg’s concurrence in Griswold v. Connecticut (1965) where he argued that the Ninth Amendment protected the privacy of married couples to in their use contraceptives. More recently, in Richmond Newspapers, Inc. v. Virginia (1979) Chief Warren Burger in a Plurality opinion used the Ninth Amendment to support the ‘unenumerated’ right to attend and report upon criminal trials. To be sure, there are powerful constraints indeed which impinge upon the Court’s use of the Ninth Amendment or any other Amendment to uphold a controversial “right.” For one, the last thing a Court would usually want to do is to — on its own — declare a “right” which has not been publicly acknowledged by a significant portion of the population for a considerable period of time. In most cases of interest, a Constitutional Amendment is the clearest route to such a declaration of either a new or unenumerated right — Amendments Fifteen, Nineteen and Twenty-Six giving voting rights to former slaves, women and 18 year-olds, respectively — being the best examples. There are exceptions — some enduring, some transient. A constitutional Amendment was not needed to extend voting rights to those without property during the Jacksonian era. More recently and controversially, the Court in Citizens United v. FEC (2010) has given corporations an unenumerated right to bombard the public with distracting and distorted propaganda during political campaigns. (This opinion may not stand.)
As in any issue involving “rights” there are always implicit and explicit constraints. Consensual sexual activity by adults, even in the privacy of their homes, often has societal implications. A spouse could easily be affected by such behavior — and so even in these very private matters, such activity is properly subject to legal scrutiny in, say, divorce or custody cases. However, Justice Scalia’s constant reference to sexual activity between consenting adult men as [simply] ‘homosexual sodomy’ is a verbal exemplar of religious and sexual bigotry. In my view, if he were to use the term ‘faggot’ in public he would not be any more wrong in his behavior than he has already been in his legal opinionating. He speaks from within a long tradition of intolerance towards gays within Western and Middle Eastern religions that is not appropriate for any sect or state, let alone for those who profess to believe in “The Holy Freedom of God’s Children.” {Special Footnote IX-A} He and other straight men with religious interests might profit — as I have — from studies such as John Boswell (1994). Same-Sex Unions in Premodern Europe. [F9-4]

FOOTNOTES; CASES;

FOOTNOTES;
[F 9-1] Whether we are referring to a majority or minority view on these issues is both issue specific and dependent upon the framing of the question. As a general view, most Americans who are not themselves gay are much more supportive of the privacy rights of gay people than of their “right to legally marry.”
[F 9-2] Cf. APPENDIX D - Dead Spots in Scalia’s Constitution for a little more documentation.
[F 9-3] In his 1989 book, The Rights Retained by the People, and on the WEB Randy Barnett has produced some very intriguing and, to my mind, very persuasive evidence and argument which augurs a more important role for the Ninth Amendment in coming decades.
[F 9-4] Boswell examines the abundant evidence of Church-approved religious ceremonies blessing same -sex unions for over a thousand years. While most of these ceremonies were in the Eastern Orthodox Church, they were also occasionally performed in Western and/or Latinate Churches.

{Special Footnote IX-A}
For the record, I am fairly straight. As a teenager, I engaged in some youthful explorations of my body’s new powers with another male teenager — but my sexual joys, desires, and temptations have since consistently been directed towards the opposite sex. Of course, at my age I am getting too old even for most temptations! (sub silentio)

CASES CITED: 9th Amendment

Bowers v. Hardwick, 476 U. S. 186 (1986) White Court Opinion
Citizens United v. Federal Election Commission, No. 08-205 (2010)
Griswold v. Connecticut, 381 U. S. 479 (1965) Goldberg concurrence
Lawrence v. Texas, 539 U.S. 558 (2003) Scalia dissent
Marbury v. Madison, 1 Cranch 137, 174 (1803)
Romer v. Evans, 517 U. S. 620 (1996) Scalia dissenting
Troxel v. Granville, 530 U. S. 57 (2000) Scalia’s dissent


BOOKS:
Randy E. Barnett, Editor (1989). The Rights Retained by the People: The History and Meaning of the Ninth Amendment. George Mason Univ. Press: Fairfax, VA. 416 pages.
John Boswell (1994). Same-Sex Unions in Premodern Europe.