COURT COMMANDED CULTURAL CONSENSUS

How the Supremes Redeemed Bush: The conservative court's decisions on homosexuality and affirmative action boost Bush's image with moderates (Joe Klein, Jun. 29, 2003, TIME)

Most Americans aren't extremists, and they are not at war. The lovely paradox of 21st century America is that we seem to be
increasingly united by the celebration of our differences. That is what the Supreme Court acknowledged in its decisions on homosexuality and affirmative action last week.

"The court legitimized and endorsed a cultural consensus," says Paul Gewirtz, a professor of constitutional law at Yale University. That consensus walks a socially sensible but legally clumsy line between tolerance and outright acceptance. Scalia noted that many Americans might not be comfortable with an openly gay business partner, scoutmaster, schoolteacher or boarder. True enough, but most people would also say that what Tyron Garner and John G. Lawrence did in the privacy of their Texas bedroom is none of our business. The court's affirmative-action decision was just as pragmatic. Most Americans disapprove of specific, codified racial preferences, like the now famous 20 points granted minority applicants to the University of Michigan. But American life, happily, is no longer plain vanilla. Anything all-white--law-school classes, corporate suites or presidential Cabinets--is not merely aesthetically displeasing, as Clarence Thomas asserted in his dissenting opinion, it is also considered socially deficient, inappropriate, un-American. Our diversity is the wellspring of American creativity, one of our competitive advantages in a global economy.

There is also a consensus on abortion: tolerable during the first few months of pregnancy but with severe limits after that. In fact, the rationale for Roe v. Wade--the right to privacy--was cited in the gay-rights decision. That the court's controversial abortion decision is now being used as a template for privacy cases is remarkable. It means that Roe is probably settled for the foreseeable future.

The political implications of all this are, I suspect, good for both the Republic and George W. Bush. The Republic is always strengthened by a reassertion of sanity.

Perhaps in order to be a liberal it is necessary to deny reality, because if Mr. Klein believes that there are currently any limitations, never mind "severe limits", on abortion after the first trimester he's delusional. And the Court's ruling on homosexuality is a disaster for the Republic for precisely the same reason: it removes from the political process our right as a society to legislate morality and turns an already overly-permissive culture into one where such moral laxity is required by law. Far from indicating that Roe v. Wade is settled law, this makes it all the more important for Republicans to appoint justices who will obliterate the notion that there is a right of privacy in the Constitution. Contrary to Mr. Klein's assertion, the Republic is always weakened when intellectual elites find it necessary to impose via judicial fiat that which they are incapable of securing through the political process. This is not only socially divisive but serves to alienate Americans from their own government and its institutions. Posted by Orrin Judd at June 30, 2003 1:12 PM