Moral Law, Changing Morals

Moral Law, Changing Morals

A recent decision reminds us that true equality for gay people will arrive only when the Supreme Court is not controlled by Justices whose moral view of gay people is negative.


Since William Rehnquist became Chief Justice of the United States, the Supreme Court has decided only three cases dealing with gay rights, and in all of them the Court has been relatively respectful (if not always supportive) toward those who are gay, lesbian or bisexual. The decision this June, however, upholding by a single vote the right of the Boy Scouts to dismiss an openly gay scoutmaster, reminds us that true equality for gay people will arrive only when the Supreme Court is not controlled by Justices whose moral view of gay people is negative.

Liberals believe that moral judgments should not affect governmental actions, because individuals have certain rights–to equality, to intimate association, to privacy–that are not connected to the substance of their actions. But in reality, legislative and judicial decisions are often shaped by the moral assessments of legislators and judges. A case in point is Bowers v. Hardwick, decided in 1986, just before Rehnquist became Chief Justice. In Hardwick the Supreme Court upheld the constitutionality of the Georgia sodomy statute, which criminalized oral or anal sex engaged in by any two individuals, regardless of the individuals' gender or sexual orientation. Although the legal question should have been whether the constitutional "right to privacy" prohibited a state from criminalizing intimate sexual conduct, a 5-to-4 majority framed the question as whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Chief Justice Warren Burger added a three-paragraph concurrence to underscore that condemnation of homosexual conduct was firmly rooted in Judeo-Christian moral standards.

During the next ten years, the country witnessed an increase in activism and visibility by the gay community. One symbolic aspect of this push for visibility was the decision of gay descendants of Irish immigrants to march in the St. Patrick's Day parades in New York City and Boston. The message these marchers wanted to send was clear: "Irish is good. Gay is good. Irish gay is good." But in a 1995 decision, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme Court upheld the Boston parade organizers' refusal to allow the gay Irish group to march. The tone of the opinion, however, reflected a sea change in the Court's attitude toward homosexuality since Hardwick.

Justice David Souter, writing for a unanimous Court, explained that most parades are intended to express something, and the gay Irish group had a message: that gays "have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics." To Justice Souter, it was perfectly understandable that a group might wish to express such a message, which he described respectfully. The parade organizers did not wish to send such a message, however, and the First Amendment precludes the government from forcing people to utter speech they do not wish to utter.

While gay Irish groups have never managed to march in either the Boston or New York parade, gay people have succeeded in getting some 165 laws and ordinances enacted to prohibit government, private employers and private businesses from using sexual orientation as a basis for adverse actions. Proponents of these laws insist they are neutral on the morality of being gay and simply establish equality. But opponents contend that this liberal neutrality rhetoric ignores real moral disagreements over gay sexual conduct. People who believe homosexuality is morally wrong cannot adopt a "live and let live" attitude toward the passage of sexual-orientation nondiscrimination laws.

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