On Anagnorisis and Ephors: Post Scriptum

As a postscript, it is worth noting that the Texas anti-sodomy statute under which Lawrence and Garner were convicted resulted in a class C misdemeanor, the absolute lowest level of criminal fault. Upon conviction under the Texas sodomy statute, Lawrence and Garner were each assessed a $200 fine, plus court costs. A class C misdemeanor does not impose any legal disability or disadvantage. The law was hardly oppressive.

Esau sold his birthright to Jacob for a mess of pottage. To prevent two gay men from having to pay a relatively trival fine of $200, the ephors of the Supreme Court, in the Spirit of Esau, traded on our heritage as if it were a mess of pottage. Cui bono?

On Anagnorisis and Ephors: Part II

In our preceding post, we discussed Bowers v. Hardwick. We shall now turn to Lawrence v. Texas.

Lawrence and Garner were arrested in 1998, and, after being caught flagrante delicto by a Harris County policeman legitimately in a private residence in response to a weapons disturbance call, were charged with violating the Texas anti-sodomy statute. They pleaded no contest to the charge, were convicted, but challenged the statute based upon constitutional grounds. Eventually, their case came before the Supreme Court on writ of certiorari. The Supreme Court overruled Bowers v. Hardwick, essentially finding (without clearly saying) that sodomy should be treated as if it were a fundamental right under the Due Process clause of the U.S. Constitution. Justice Kennedy wrote the majority opinion, in which five justices (Justices Stevens, Souter, Ginsburg, and Breyer). O’Connor wrote a concurring opinion. Justice Scalia wrote a dissent, in which Chief Justice Rehnquist and Thomas joined. Justice Thomas also wrote a short dissenting opinion. In this post, I will focus on Justice Kennedy's opinion, and on Justice Scalia's dissenting opinion.

Justice Kennedy began his dismantling of Bowers by attacking the issue as framed by Justice White in his opinion. By formulating the issue as whether the U. S. Constitution confers a fundamental right upon homosexuals to engage in sodomy in Bowers, Justice Kennedy accused the Court of having failed to “appreciate the extent of the liberty at stake.” Id. at 567. Bowers' misapprehension of the issue “demean[ed] the claim [Bowers] had put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.” Id. None of this makes any sense because it confuses categories. Bowers involved the illicitness of certain acts, and there was no question before the court as to relationships. There was no dumbing down of anything, as Justice Kennedy states, and so his comparison is false. It was Justice Kennedy who was dumbing up the liberty interest at stake, making a statutory prohibition against sodomy—which is aimed at a prohibiting a certain act—a prohibition against a personal relationship. Kennedy was guilty of overstating or amplifying the right at issue. In his dissent, Justice Scalia observes this shift in formulation, and he discloses why the Court went way beyond the issue before it. He sees in it the seeds of a "dismant[ing of] the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marrage is concerned." Id.at 604 (Scalia, J., dissenting).

The next trick used by Justice Kennedy was to reframe the historical issue. Since it was plain that the traditional and historical restrictions against sodomy were monolithic, Kennedy had to resort to verbal prestidigitation to hoodwink his audience. He reframed the issue from being a prohibition of sodomy to being one of “homosexual conduct as a distinct matter.” Id. at 568. In analyzing traditional prohibitions against sodomy, the term “homosexual conduct as a distinct matter” is an anachronism. Since the “concept of the homosexual as a distinct category of person did not emerge until the late 19th century,” id., this deftly allowed Kennedy to ignore any history prior to the 19th century. The term “homosexual” is a bastard term formed by joining a Greek word homo (= the same) and a Latin term sexualis (=sexual). It is of relatively late origin, the first known use being by the Austrian-born novelist Karl-Maria Kertbeny, who published an anonymous pamphlet in German in 1869. When it made it into the English language, and, what is more important, the English legal language, would have been later. (The Merriam-Webster Online Dictionary puts down the origin as being 1892). This clever little device allowed Justice Kennedy to cover a lie with words that were technically accurate: “Thus early American sodomy laws were not directed at homosexuals as such . . . .” Id. It would be somewhat like stating that there have never been any tradition of laws against fraud and deceit because there has not been a law that ever used the term “fib” “as such.” Ultimately, the argument is absurd. If, under our traditions, all manner of sodomy—regardless of who was involved—was traditionally considered behavior subject to criminal sanction, then that necessarily included “homosexual” sodomy. The moniker used, and whether it included more than one group of actors, is irrelevant. Another way of looking at it is as follows. Our inherited traditions held that X, Y, and Z were subject to criminalization without falling afoul of the Constitution. Justice Kennedy argues since we are dealing with X, and not Y and Z, the fact that X, Y, and Z were considered subject to criminalization does not mean that X alone was. What kind of logic is that? As Scalia accurately observes: "Whether homosexual sodomy was prohibited by a law trageted at same-sex sexual relations or by a more general law prohibiting both homsexual and heterosexual sodomy, the only relevant point is that it was criminalized--which sufficies to establish that homsexual sodomy is not a right 'deeply rooted in our Nation's history and tradition.'" Id. at 596 (Scalia, J., dissenting)

Next, Justice Kennedy observes that enforcement of the anti-sodomy laws in the context of consensual sex between homosexual men, as distinguished from predatory sex, was rare. He also points to the various evidentiary standards that made prosecution in instances of consensual sodomy difficult. This "infrequency" of prosecution, Kennedy argues, "makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults." Id. at 569-70. Of course, all of this is beside the point. The point was not whether the laws were rigorously enforced or enforcement tempered on the grounds of prudence, prosecutorial discretion, or difficulty of proof. The point is, rather, whether there were laws at all, and whether such laws were part of our inherited traditions and therefore free of constitutional prohibition. "Surely that lack of evidence" of prosecution, "would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a 'fundamental right,' even though all other consensual sodomy was criminalized," Scalia scoffed in his dissent. Id. at 597 (Scalia, J., dissenting).

Then, in what must be characterized as the pièce de résistance of sophistry in this opinion, Justice Kennedy focuses on the "laws and traditions in the past half century," as being "of most relevance" to the issue of whether the Due Process Clause of the 5th and 14th Amendment included as part of its "liberty" the right to sodomy. Id. at 571-52. What the attitudes may have been since 1953 by a small cadre of law professors and foreign judges is absolutely and totally irrelevant to the meaning of the "substantive due process" under the 5th and 14th Amendment and the understanding of a "fundamental" right under the U.S. Constitution. To understand the meaning of the Constitution requires focus on the circumstances that confronted the framers and ratifiers of the 5th Amendment in the 1700s and the 14th Amendment in the mid 1800s. While the "emerging awareness" that sodomy should not be criminalized that Kennedy points to (assuming its accuracy) may perhaps be relevant to whether these statutes should be repealed through the democratic process, they have absolutely no relevance whether they ought to be repealed because the Constitution and mandates it. It would seem beyond cavil that what the American Law Institute thought in 1955, and what state legislatures have been doing since 1961, and what the British Parliament did in the 1960s, and what the European Court of Human Rights did in the case of Dudgeon v. United Kingdom in 1981 has nothing to do with what the meaning of the Constitution is. As Scalia caustically states in his dissent, "an 'emerging awareness' is by definition not 'deeply rooted in this Nation's history and tradition[s],' as we have said 'fundamental right' status requires." Id. at 568 (Scalia, J., dissenting).

It is with shoddy arguments such as these, that Justice Kennedy, writing for a majority of the Supreme Court, overruled Bowers v. Hardwick.

Finally, it is worth reviewing Justice Kennedy's preroration or coda and pointing out what can only be called its arrogance. Kennedy states:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

Id. at 578-79.

What hubris! First, Justice Kennedy purports to have insights as to liberty that our founders did not have. They were "blind" to "certain truths," but he, as part of a "later generation," presumably one the American ephors, can now "see." Second, Justice Kennedy essentially admits that the people who drew up and ratified the clauses he was interpreting as a Supreme Court justice did not know of the right to sodomy ("Had . . . [they] known . . . they may have been more specific."). Impliedly, this is an admission by Justice Kennedy that the "liberty" he has just told us was found in the Fifth and Fourteenth Amendments is not to be found in these Amendments, at least if construed in their original intent. The Constitution does not "endure," it may be noted, but both it and the democratic process "erode" when justices invoke its text and dishonestly impute to those texts alleged freedoms and liberties that were never intended to be therein. This is not constitutional interpretation, but a travesty.

In summary, “liberty under the Due Process Clause,” according to the Court, “allows homosexual persons the right to enter into a homosexual relationship and engage in homosexual acts to make the “personal bond” more “enduring.” Id. This is grandiose language, involving the "liberty of the person ... in its ... more transcendent dimensions." Id. at 562.

(That the right to sodomy is "transcendent" is risible if it weren't so offensive. One can only guffaw at the suggestion that gives this dignity to vice. It seems unassailable that a person engaged in sodomy is involved in a particularly vulgar and paradigmatic "submundane" act. As an aside, one may snicker at the probably unintended pun of Justice Kennedy who suggests that homosexual sex would make homosexual relationships more “enduring,” since the etymology of the word endure comes from Anglo-French endure, which in turn comes from Vulgar Latin indurare, which means to harden.)

Though both the result and legal reasoning of Lawrence are questionable on the issue of the criminalization of sodomy, there is, as Scalia noted in his dissent, a far more ominous note attached to Lawrence. To Scalia, the majority opinion in Lawrence stated that the law before the Court had no rational basis because the State of Texas had no legitimate interest in prohibiting behavior thought to be immoral and unacceptable. "This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion.¨ Id. at 599 (Scalia, J., dissenting). In Scalia's perceptive view, Lawrence "effectively decrees the end of all morals legislation." Id. If the sexual morality of the majority does not present the state with a legitimate state interest that may be the basis of law, then laws against "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" have no basis. The majority of the Court, in deference to the "homosexual agenda," and taking clear sides in the "culture war," usurped the democratic process, and imposed, as if they were a "governing caste that knows best," a foreign law upon the people under the pretext of constitutional law. Id. at 602-03. More, according to Scalia, the irresponsible broadening of the rights in question makes it a foregone conclusion that homosexual marriage will be held to be a "fundamental right" under the U.S. Constitution.

Time will tell if Scalia predicted the ephorate aright.

On Anagnorisis and Ephors: Part I

In his Poetics, Aristotle analyzes the genre of tragic drama. He describes the moment in a tragedy where the hero recognizes or becomes aware of some truth about his identity or actions, and that awareness or sudden "epiphany" accompanies the reversal of the situation in the plot, what is known as the peripeteia. That moment of discovery is called the anagnorisis (ἀναγνώρισις), a Greek term meaning discovery or recognition. See Poetics 10, 11. A vivid example would be King Oedipus's realization of the truth that he is both married to his mother and guilty of patricide, or Othello when he becomes aware that Desdemona was not unfaithful to him. The anagnorisis entirely transforms the character and the plot. It is as though he is finally confronted with the truth. A scriptural anagnorisis may the Gallicantu (the "Cock's Crow") in the Gospels (Matthew 26:69-75, Luke 22:54-62, Mark 14:66-72, and John 18:15-18, 25-27), where Peter hears the cock crow and becomes aware of his denial of the Lord.


In the tragic drama of our country's recent cultural demise, and its reflection upon our political and legal institutions, I have had an anagnorisis or two. One particular vivid anagnorisis involved my learning of the United States Supreme Court's decision in Lawrence v. State of Texas, 539 U.S. 588, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In Lawrence, a majority of the United States Supreme Court justices struck down the sodomy law in Texas as unconstitutional. It constituted a direct reversal of its decision in 1986, in Bowers v. Hardwick, where the Supreme Court held that a Georgia anti-sodomy law did not offend the U.S. Constitution. The reversal was a shock to my naturally conservative constitution, and it confirmed in me the already growing feeling of doubt about the institutional integrity of our judiciary at the highest level. It was when I learned of the Supreme Court's volte face about whether the right to homosexual sodomy was a fundamental right under the U.S. Constitution that I realized that we are not materially ruled by law. Though the forms have stayed in place, the substance of what's going on is something different altogether. Whatever's going on in the Supreme Court chambers, it ain't law. In practice it appeared to me that we are governed by the--often stupid, superficial, and tendentious--opinions of unelected men and women--modern day ephors--who wear black robes.

That homosexual sodomy should be a fundamental and protected right under the U.S. Constitution is without legal justification, if intellectual honesty and legal analysis--and not sophistry--is to govern dispositions of legal controversies. Under the common law that we inherited from the English, and consistent with the teachings of the natural law and our Jewish and Christian cultural capital, sexual activity was seen as legitimate, and thus a protected right, only within the marriage contract. By the unanimous consent of our traditions--cultural, religious, and legal--sexual activity outside of the marriage was considered immoral, and thus, subject only to prudential considerations, a valid subject matter for restriction or criminalization. Because homosexual acts were seen as being particularly repugnant and so obviously against the natural moral law, they were euphemistically referred to as “crimes against nature.”

The about face of the Supreme Court from Bowers v. Hardwick to Lawrence v. Texas merits review, as it helps us see, in addition to the wholesale collapse of legal reasoning by some on the Supreme Court, the utter rejection of the Natural Law by the Supreme Court. It also shows the disingenuous nature of the arguments adopted by those who would reject the Natural Law. Because both Christianity and the Natural Law informed our institutions and laws and still play an attenuated and attenuating basis for them, a judge who wants to avoid them must engage in legal somersaults and verbal legerdemain. Some of them look pretty foolish. We will start with a review of the straightforward analysis of Bowers v. Hardwick, and then turn to the inanities of Justice Kennedy in Lawrence v. Texas. In our next segment, we will analyze how Justice Kennedy, who wrote the majority opinion in Lawrence v. Texas, "reasoned" his way out of the obvious.

In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), the Supreme Court of the United States upheld the sodomy statute of the State of Georgia against constitutional challenge. Hardwick had been charged in August 1982 under Georgia criminal law for consensual homosexual sodomy. (Actually, the district attorney did not even consider taking the charge to the grand jury for an indictment, but this was a test case for the ACLU.) Hardwick (represented by the lawyers of the ACLU) challenged the law in Federal district court, and the suit was dismissed. On appeal, in a divided opinion, the entire 11th Court of Appeals reversed and remanded, holding that the Georgia statute violated Hardwick’s fundamental constitutional rights. The Supreme Court granted writ of certiorari, and, in a 5-4 decision, reversed the Court of Appeals. In so doing, it held that the Georgia statute was constitutional.

The opinion of the Court was delivered by Justice White, and he was joined by Chief Justice Burger, and Associate Justices Powell, Rehnquist, and O’Connor. Associate Justice Powell filed a concurring opinion, as did Chief Justice Burger. Justice Blackmun filed a dissenting opinion, and was joined by Justices Brennan, Marshall, and Stevens. Stevens also filed his own dissenting opinion, in which Justices Brennan and Marshal joined. I will discuss the majority opinion and Justice Burger's concurring opinion. I will save commentary on Blackmun's histrionic ravings in his dissenting opinion for another time, if I get to them at all.

Justice White straightforwardly framed the issue before the court as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the man States that still make such conduct illegal and have done so for a very long time.” Id. at 190. (In his dissent, Blackmun accused Justice White of being too fixated with homosexuality, which is a rather odd accusation given that this was the issue before the Supreme Court!) Justice White found no prior precedent in the Supreme Court jurisprudence relating to the right to privacy, and rights relating to marriage, family, and the rearing of children to support Hardwick’s argument that the right to engage in homosexual sodomy had been implicitly recognized in prior case law. Id. at 190-91. Justice White also observed the obvious: that there was no express provision in the Federal Constitution that addressed this issue. Though the Constitution did not address this issue, that alone did not foreclose the question if the right was considered “fundamental.” (This is a legal reference to the Natural Law or our inherited cultural and legal traditions which are implicit in the historical understanding of the U. S. Constitution at the time of its ratification.) Justice White noted that there were two tests generally recognized that help identify a "fundamental right." First, a fundamental right is one that was “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [they] were sacrificed.’” Id. at 191-92 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 151, 152, 82 L.Ed. 288 (1937)). Another formulation for a fundamental liberty would be one “‘deeply rooted in this Nation’s history and tradition.’” Id. at 192 (quoting Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (opinion of Powell, J.)). It was “obvious” to the majority of the Supreme Court in 1986 that homosexual sodomy could not be considered “fundamental” under either test. Id. Any legal scholar would know that sodomy was against the common law we had inherited from England and adopted in the United States, and was prohibited by statutes which existed and which were enforced during the times the U.S. Constitution and the 14th Amendment were ratified. The Supreme Court did not see fit to craft a “more expansive” formulation of what a “fundamental” right was so as to comprehend the homosexual sodomy within its auspices. “The Court . . . comes nearest to illegitimacy when it deals with judge-made constitutional law having no cognizable roots in the language or design of the Constitution.” Id. at 194. Indeed. Words that ought to be kept in mind when assessing the Court's reversal seventeen years later.

Hardwick also argued that if the homosexual sodomy was not considered a fundamental right, the Georgia statute criminalizing sodomy nevertheless was unconstitutional because it had no rational basis (the argument being that the presumed belief of the majority of the voters in Georgia that sodomy was immoral and unacceptable being not enough to give a rational basis to the law). The Supreme Court rejected the argument since it spread too far and wide and would virtually result in constitutional challenge to any law. “The law . . . is constantly based on notions of morality,” it tersely stated. If the fact that a law was based only upon the morals of the majority was sufficient to invalidate a criminal law, “the courts will be very busy indeed” handling all sorts of challenges. Id. at 196.

In his concurring opinion, Chief Justice Burger was even more to the point. He wrote “to underscore” his view that “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.” Id. at 196.

[T]he proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

Id. at 196-97.

In only seventeen years--about one-half a biblical generation--the Supreme Court was to reverse itself. In 2003, in the case of Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), another constitutional challenge to statutes criminalizing sodomy made it to the threshold of the Supreme Court. In a 6-3 ruling, the Supreme Court overruled Bowers v. Hardwick and found that homosexual sodomy was a fundamental right under the Federal Constitution. How the black and white of Bowers v. Hardwick turned into the white and black of Lawrence v. Texas will be handled in the next post.