Law, Morality, and Homosexuality
Rev. Richard P. McBrien

In late June the U.S. Supreme Court handed down a landmark decision, Lawrence v. Texas, on the always controversial issue of homosexuality. In doing so, the Court overturned a 1986 decision, Bowers v. Hardwick, which had upheld a similar law in Georgia banning sexual relations between homosexuals, even in the privacy of their own homes.

In Lawrence v. Texas the Court rejected the argument that, if “the governing majority in a State has traditionally viewed a particular practice as immoral,” the State is justified in passing a law prohibiting the practice.

Needless to say, the gay and lesbian communities (and many other Americans as well) greeted Lawrence v. Texas with enthusiasm, while leading figures on the political and religious right expressed outrage.

Seventeen years earlier, the reactions to Bowers v. Hardwick had been just the opposite. Gays and lesbians (and civil libertarians) were dismayed, while others, like the Reverend Jerry Falwell, congratulated the Court for having “recognized the right of a state to determine its own moral guidelines” and for having “issued a clear statement that perverted moral behavior is not accepted practice in this country.”

In his strong dissent from the recent 6-3 Lawrence v. Texas decision, Justice Antonin Scalia complained that, in overturning both the Texas law against homosexual behavior and the previous 5-4 Court decision upholding a similar law in Georgia, the Court has “effectively” decreed “the end of all morals legislation.”

If Justice Scalia were correct in his judgment, many of our most important laws would have to be consigned to the dustbin, because every law that touches upon personal and societal behavior has a moral dimension to it, whether those laws concern murder, theft, and rape, or the environment, government aid to the poor, and civil rights. Morality in each of these cases is determined by what society believes is right and wrong, just and unjust, fair and unfair.

The morality in question, however, is rooted in what Catholics understand as the natural law–a law “written in [the] hearts” of every woman and man (Romans 2:15). It is not a morality derived from any religious tradition, although the natural law and the moral teachings of particular religious groups often coincide or at least overlap at key points.

The real question, therefore, is not whether laws can any longer have a moral dimension, but rather whose morals?

It is clear that only that morality which society accepts as its own has a realistic chance of being translated into public policy. This is not to say, however, that society’s moral standards are beyond challenge, or that minority views and practices are to be overridden and prohibited by the majority.

When Mario Cuomo, then-Governor of New York, was criticized for his major address on the subject of religion and politics at the University of Notre Dame in 1984, he sought to clarify his position two weeks later in a talk at St. Francis College in Brooklyn.

“I did not say that anyone’s religious values or moral codes should be surrendered to a popular consensus in order to avoid disagreement and foster harmony,” Governor Cuomo insisted. “I did not say that what is popular must be good. Nor that the community’s consensus on what is right or wrong should never be challenged.

“What I did say and what I repeat is that if we are serious about making certain values a part of the public morality,...there must first be a public consensus; that’s the way laws are made in a democratic society.”

Presumably there was a consensus in Texas in support of a law prohibiting homosexual conduct, even in private between consenting adults. Sometimes, however, the moral values of a majority in a given society are so injurious to the rights of one or another of its minorities that the courts are required to nullify legislation that has such an effect. That is what happened in Lawrence v. Texas this past June.

In his dissent, Justice Scalia complained that the decision effectively nullified the will of a “democratic majority” in Texas by its “invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.”

But as The New York Times pointed out in its editorial the next morning, “It is the same argument made in 1967 for upholding a Virginia law banning marriage between blacks and whites. The idea that minorities must wait for the majority to recognize their basic rights is as wrong today as it was then.”

Catholics, who have known what it is to have lived as a minority in a politically and religiously unfriendly society, should have welcomed Lawrence v. Texas.