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Conservatives And The Court

In the fallout from the Supreme Court’s decision upholding homosexual rights, the media failed to note something peculiar?the so-called “conservative” Cato Institute had taken the side of the homosexuals. If you do a Google search on “conservative” and the “Cato Institute,” you will find over 27,000 references. Typically, it is labeled a conservative foundation or conservative institute. Leftist writer Eric Alterman likes to cite media attention for the Cato Institute as an example of the conservative bias of the media.

But Cato has taken non-conservative positions on several controversial social issues. A column by Roger Pilon, vice president for legal affairs at the Cato Institute, hailed the homosexual-rights decision as a “victory for the pursuit of happiness.” It turns out that Cato filed an amicus brief in this landmark case arguing that the court should discover a right to sodomy in the constitution, thereby striking down the laws of 13 states. Cato’s executive vice president, David Boaz, is a prominent supporter of gay rights and drug legalization. Cato’s allies in filing amicus briefs in the homosexual case were almost all on the political left. They included the ACLU, the National Lesbian and Gay Law Association, and the National Organization for Women Legal Defense Fund.

In dissent, Justice Antonin Scalia said that he has nothing against homosexuals promoting their agenda through normal democratic means. He added, “But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a state to criminalize homosexual acts?or, for that matter, display any moral approbation of them?than I would forbid it to do so.” Scalia said the court had discovered a brand-new constitutional right to sodomy that undercuts the democratic process, and that the court majority had set itself up as a governing elite that knows best.

Justice Clarence Thomas, another true conservative, said he regarded the Texas law against sodomy as silly, and he didn’t think enforcing such a law was a proper use of law enforcement resources. But he said it wasn’t within his power as a Supreme Court Justice to do anything about it because there is no right to same-sex sodomy in the U.S. Constitution.

Scalia noted that the Supreme Court majority had overturned one of its own decisions, the Bowers case, in which it had declared no constitutional right to sodomy. The court said that the Bowers decision had been strongly criticized over the years. Scalia found that to be a weak basis on which to overturn a previous decision. The criticism, of course, had come from the militant homosexual lobby and its allies in the legal profession and the media.

Not surprisingly, the New York Times and the Washington Post editorialized in favor of the court’s ruling in favor of the homosexuals. The Times noted that Scalia said the ruling may provide a basis for upholding homosexual marriage. The Times is in favor of that, too, even though the majority of Americans are not.