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The findings of presidential commissions are often a kind of mirror of the public sensibility at the time -- one reason, perhaps, that the latest porn report is so different from the 1970 one. The Supreme Court, too, reads the papers and looks at election returns. The tenor of the decision allowing a state to outlaw sodomy among homosexuals is an echo of cultural conservatism, a statement that is in tune with the times. Notes Harvard Law Professor Randall Kennedy: "The law is now catching up with the rightward swing politically and culturally."
What is disquieting about the decision for many constitutional scholars is that it could unravel the evolving constitutional right of privacy, the $ court's creation of a realm of personal life that the state cannot enter. This concept of privacy has been enshrined during the past two decades in decisions such as those allowing the use of contraceptives and asserting a woman's right to have an abortion. "What's frightening," says Kennedy, "is that if what (Justice Byron) White's decision says is true, the history of these other decisions is in trouble." The principle of liberty, wrote Justice Harry Blackmun in his dissent, includes intimate associations and private conduct central to one's fulfillment as a person, and those include sexual activity. Some scholars, however, like Stanford Law Professor Thomas Grey, have maintained that the court has never given support to the notion that the right of privacy protects sexual freedom.
Justice White's invocation of the "ancient roots" proscribing homosexuality is not unlike the Meese commission's homage to family values. But there is a kind of fallacy in resorting to the presumed wisdom of the ancients. Slavery has ancient roots. So too did laws forbidding marriage between people of different races. Says Kennedy: "The court makes ancient roots into something which we, ipso facto, should pay deference. We should critically see if these practices are complementary with a just society."
Many conservatives saw the sodomy decision as a laudable attempt to adhere to a strict interpretation of the Constitution rather than read into it new rights that are more suitably left to the discretion of elected legislatures. Whether or not they favor laws restricting homosexual activities, they argue that there is nothing in the Constitution that specifically prohibits such laws. Religious-rights activists went even further, saying that the decision was a clear statement about the "unnaturalness" of homosexuality.
If Jerry Falwell had a divine plan for America, then the Supreme Court's sodomy decision and the Meese report would both be on his drawing board. Falwell views these two events as the trophies of the New Right's gradual rise to power. "The new moralism in this country," he says, "has been growing for the past two decades. The awakening is manifesting itself in the change in the national life-style." Falwell sees the court's decision as a kind of last-straw vote, a moral denunciation of Sodom. "It was a clarion call that enough is enough." Enough is much too much in the case of pornography: "We recognize the existence of pornography and the impossibility of stamping it all out. But we do want to push it back to Sleaze Town to live amongst the roaches where it belongs."