Waiting for Judgment Day

Responding to a neighbour's report of a disturbance, Houston police burst into an apartment and discover John Lawrence and Tyron Garner having sex. They arrest the two men who, after a night in jail, are fined $200 for violating the Texas sodomy statute outlawing "deviate sexual intercourse with another individual of the same sex". Lawrence and Garner fight this conviction, arguing that it violates their rights under the American Constitution. Five years later, on 26 June 2003, the Supreme Court agrees, ruling that sodomy laws are an unconstitutional infringement of the right to privacy.

It's a strange state of affairs. American liberals are suddenly viewing as their last best hope for progressive social action the same Republican–dominated Supreme Court that selected George W Bush as president. Stranger yet, religious right leaders are denouncing the liberal activism of some of the Republican–appointed Supreme Court Justices and literally praying for them to fall sick and resign. What is going on?

With the radical religious right firmly in control of both houses of Congress as well as the White House, the Supreme Court has become the next big battleground in the culture war between secular progressives and the religious right.

This became clear with a flurry of big decisions in the closing days of the 2003 Supreme Court session. The most controversial was the judgment against the Texas sodomy law. The Supreme Court ruled that: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." The law "demeans the lives of homosexual persons", and "the state cannot demean their existence or control their destiny by making their private sexual conduct a crime." The decision took many observers by surprise because it overturned a 1986 Supreme Court decision upholding the constitutionality of sodomy laws.

Civil libertarians welcomed the decision as a triumph for the right to privacy — a right not explicitly mentioned in the Constitution. Gay rights advocates celebrated it as an important step forward in the struggle for legal equality for homosexuals.

Social conservatives, on the other hand, denounced the sodomy decision. Justice Antonin Scalia filed a dissent, joined by Chief Justice William Rehnquist and Justice Clarence Thomas. "The court has largely signed on to the so–called homosexual agenda," groused Scalia. Pat Robertson, founder of the Christian Coalition, announced a 'prayer offensive' to encourage, God willing, three Supreme Court justices to retire on grounds of ill health.

But it would be misleading to regard this decision as symptomatic of a radical or progressive Supreme Court. On the whole, the Court tends to favour the middle ground when presiding over sensitive issues.

Three days before its sodomy ruling, the Supreme Court issued an important decision on the use of racial preference in college admissions. The Court allowed the use of race as a positive factor in admissions, but ruled out setting racial quotas. The majority argued that racial diversity was a legitimate goal for educational institutes. Positive discrimination (known as 'affirmative action' in the US) is opposed by some liberals as well as many conservatives, but the ruling, which carefully steered a moderate course, was broadly welcomed by the White House as well as by Democrats.

There have been several other recent cases in which the Court has also sought to establish delicate distinctions in the quest for the middle ground. In Virginia v. Black it ruled that a state law prohibiting cross burning violated the constitutional right to free speech. While the state is free to criminalise cross–burning that is designed to intimidate, the Virginia statute went too far by prohibiting cross–burning that symbolises racial supremacy. Expression of racial hatred, it seems, is protected by the First Amendment.

Similarly, in Atkins v. Virginia the Supreme Court ruled that executing mentally retarded criminals was unconstitutional. However, it refused to review a lower court case allowing states to execute people who were minors, aged 16 or 17, when they committed crimes which justified the death sentence.

And there was no evidence of any newfound liberalism when, earlier this year, the Supreme Court overturned a lower court ruling that California's 'three–strikes' law was a violation of the constitutional ban on 'cruel and unusual punishment'. The three–strikes law imposes draconian mandatory sentences on criminals with two prior felony convictions. In the case it reviewed, Andrade v. Lockyer, the Supreme Court upheld a sentence of life, without possibility of parole for 50 years, for a man who stole $150 worth of videos.

To understand the tensions that have led to these seeming inconsistencies it is as well to bear in mind the political balance of the Supreme Court. Seven of its nine members were appointed by Republican presidents. Most controversial decisions are decided by a five to four vote, with the most common swing voter being Sandra Day O'Connor, a moderate conservative appointed by Ronald Reagan. 'Moderate conservative' might also be the best summary of the current Court's record — relatively enlightened views on matters of human rights which are heavily influenced by public opinion.

Even in the controversial sodomy decision, the Court merely applied the constitutional principles of equal treatment and privacy in the light of mainstream acceptance of private homosexual behaviour. The majority explicitly stated that their ruling did not open the way for same–sex marriage — a proposal that has far less public support than the right to privacy for consensual sex acts.

The Supreme Court's moderate conservatism is attracting attention because it contrasts with the radical rightwing policies of the Bush administration, and more especially, the Republican majorities in Congress. Progressive activists may be correct in viewing the Supreme Court as currently the strongest force for moderation in the federal government. Yet they should take little comfort from this. The difference between the Supreme Court and the Republican leadership amounts to little more than the difference between old–style conservatives and the new radical religious right.

The old–style conservatives are suspicious of radicals and revolutionaries, sceptical of social engineering, and wary of laws that criminalise private behaviour. They think the government should stay out of the boardroom and out of the bedroom. The radical religious right shares the laissez–faire attitude to business, but wants to use government to impose its religious views on the general public. They want the government out of the boardroom but in the bedroom — even if that means the police knocking down your door in the middle of the night to stop you committing unbiblical sex acts.

The Supreme Court does not have a liberal majority. It has a liberal wing and a religious right wing, with the swing votes being held by moderate conservatives. These conservatives may put a brake on some elements of the religious right's revolutionary agenda. But the US will not move in a progressive direction until liberal politicians can win the democratic battle of ideas and regain control of the executive and legislative branches of government.

Worse yet, the Supreme Court's role as a check on the excesses of the other two branches of government may not continue much longer. As Pat Robertson noted in his prayer offensive, several moderate Supreme Court Justices are very old and frail. George W Bush has said he would like to appoint more conservative justices like Antonin Scalia. If just one liberal or centrist member was replaced by a radical rightwing jurist, the Supreme Court could become another obedient soldier in the religious right's culture war. It's almost enough to make a godless liberal pray for the health of a few conservative old lawyers