WASHINGTON - In his fuming dissent from the Supreme Court's historic decision in a Texas sodomy case, Justice Antonin Scalia says the next step is gay marriage. He does not make this prediction with a tone of delight.
He also is not quite right. A lot more legal, political and cultural steps lie between here and where Justice Scalia fears that the high court's decision is taking us.
A few days after the decision, Senate Majority Leader Bill Frist hinted at the battle ahead when he declared his support for a proposed constitutional amendment to ban homosexual marriages. He fears a slippery slope has been greased by the Supreme Court's 6-3 decision, which struck down Texas' sodomy law as a violation of privacy and equal protection rights.
"I have this fear that this zone of privacy that we all want protected in our homes" could lead to a state in which "criminal activity within the home would in some way be condoned," Mr. Frist said on ABC's This Week.
Let the debate begin. The court has helped stimulate it. Compared to the front-page headlines that the Supreme Court's decision ignited, hardly anyone seemed to pay much attention when Vermont legalized "civil unions" or when Canada legalized gay marriages.
"It is clear from this that the court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed," Justice Scalia wrote.
In other words, the court should sit back and referee, not take an active role on one side or the other. Somehow that logic must have slipped his mind when he helped the high court stop the recount of presidential votes in Florida in 2000, declaring George W. Bush to be the winner outright. But that's old news. Let's move on.
Justice Sandra Day O'Connor reasonably saw the issue of equal protection for "private, consensual conduct" to be quite separate from other laws that distinguish between heterosexuals and homosexuals.
"Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage," she said. "Unlike the moral disapproval of same-sex relations - the asserted state interest in this case - other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." Quite right.
But the Texas case does show how easily the enforcement of a law that even Justice Clarence Thomas called "silly" in his agreement with Justice Scalia's dissent can turn into an abuse of privacy rights that the Taliban might envy.
In fact, wrote Justice Thomas, if he were a member of the Texas legislature he would vote to repeal the law.
"Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources," Justice Thomas said.
But Justice Thomas, like Justice Scalia, feels the legislators should do that, not the courts.
Yes, traditional conservatives endeavor to put limits on the power and reach of government into the lives of individuals, except when they, too, want to reach into the lives of individuals.
Frankly, I have never understood the fevered objections to gay marriages, anyway. At a time when the national rate of traditional marriage among heterosexuals has been in decline for about 40 years, it is ironic to me that the people who sound the most excited about marriage also happen to be homosexuals.
The opposition irrationally claims that marriage is somehow devalued by the idea of gay marriages, as if marriage is a private club only some of us can enter.
It is similarly illogical that gay rights opponents say the state has an interest in keeping homosexuals unmarried. It seems to me that if you want homosexuals to be less promiscuous, you should encourage committed unions, not ridicule them.
After all, a lot of homosexual couples are staying together longer than many of their heterosexual counterparts. Maybe the rest of us could learn something from them.
Clarence Page is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Fridays in The Sun. He can be reached at cpage@)tribune.com.
