Prejudice and Precedent

June 29, 2000

As a rule, the U.S. Supreme Court is constitutionally wrong even when it promulgates a desirable result. The Court has now struck down a warped New Jersey law requiring the Boy Scouts to accept homosexual scoutmasters.

It was an outrageous, tyrannical law. Like most “civil rights” laws, it actually denied a genuine and basic civil right — the right of association. If you’re not free to choose your own company, you’re not free. The term civil rights has become an Orwellian euphemism for compulsory association.

Yet that law, like many bad laws, was perfectly constitutional. The federal government has no authority to say New Jersey can’t force the Boy Scouts to accept homosexuals. That’s one of the infinite number of powers that are reserved to the states. It’s up to the people of New Jersey to control their own legislature.

Even the four dissenters objected on the wrong grounds. Justice John Paul Stevens defined the issue as one of “tolerance” and “prejudice,” deeming it quite proper to force the Scouts to associate with people who perform sexual acts the Scouts deem immoral. Why? Because the Scouts have never officially defined themselves as an anti-homosexual organization.

This is really absurd. Until recently, it could be assumed that homosexuality was among the innumerable things most people implicitly disapprove of, and there was no need to spell it out. On the contrary, it was considered so base that it didn’t have to be condemned overtly. When the Scouts were founded, more than a century ago, homosexuality, “the love that dare not speak its name,” was, like pedophilia, necrophilia, and bestiality, unmentionable in polite society.

Nobody supposed that if you delicately avoided condemning such vices by name you were committed to tolerating them. Many moral traditions are, necessarily, tacit. If the Scouts don’t formally proclaim themselves opposed to kidnapping, must they accept kidnappers as scoutmasters?

Justice Stevens wrote: “That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes.” Whoa, there! The words prejudices and harm beg the question; these are not at all “established matters of fact.” Obviously the Boy Scouts would reject Stevens’s formulation; that’s why they took the matter to court. They don’t consider their moral views “prejudices,” and they don’t think they “harm” anyone by disapproving of his sexual conduct.

Justice Stevens didn’t even refer to the Constitution and the reserved powers of the states. He argued solely from his conviction that there is nothing wrong with homosexuality and that anyone who thinks otherwise is guilty of “prejudice.” You are prejudiced if you don’t share Justice Stevens’s prejudice — a fine specimen of liberal reasoning.

In yet another judicial usurpation of the powers of the states, the Court ruled that Nebraska’s law against dreadful “partial-birth abortions” — in which the brain is sucked from the skull of a viable child on the verge of birth — places an “undue burden” on a woman’s right to abort. The Court has committed itself to the notion that abortion is a constitutional right, so now its majority feels it must defend any form of slaughter that occurs before actual birth, even an agonizing and sickening form of killing that hardly qualifies as abortion (and is too much even for most abortionists).

The wonder is that there are human beings depraved enough to inflict such cruelty on a helpless child. It’s only slightly less wondrous that there are justices callous enough to bless it and confused enough to think it can be constitutionally protected.

The Constitution has no more to do with the Court’s opinions than the Book of Revelation has to do with the Unitarian Church. The Court’s opinions are based solely on the Court’s opinions. In these cases it refers not to the text of the Constitution, but to its own previous, and dubious, rulings.

But a new ruling, when it’s derived from older and erroneous rulings, is bound to go further astray than the precedents it appeals to. So the Court keeps getting crazier and crazier, and ever more remote from the Constitution.

Joseph Sobran

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