The Last Word on Sodomy

When I read Newsweek, I generally skim it, and even then seem to grasp it all without having to really pay attention. But sometimes I hit the George Will column, “The Last Word,” like a brick wall. I have to go back over it carefully three times, and even then can only at best guess what he’s saying. His thinking is so far removed from mine, and he is so convinced that everybody already shares his views, that I often have a hard time grasping his message.

This was the case with his December 7, 1998, piece on “What Courts Are Teaching: When a court does the right thing for the wrong reason, it does the wrong thing.” The phrase “the right thing” is generally understood to mean something other than what an author approves of. Rather, it refers to something magical, something approved of by someone or something other than people. Perhaps this explains why I find it nearly impossible to tell what Will considers “the right thing”: he is obliged to pretend that I already know (by some magical means) what “the right thing” is.

And perhaps this in turn explains the jumbledness of his article: he is arguing for something that he doesn’t believe needs to be argued for. He is expressing his opinion on what people should do, while pretending to be merely reiterating what “it is right” to do. As we will see, he further confuses things at a crucial point with the phrase “Some thoughtful critics will say . . . ,” a trick that allows him to avoid either expressing an ordinary opinion or appealing to “the right thing.” It is striking that he resorts to this trick on the question of whether to approve of homosexuality. It is also striking that the “thoughtful critics” disagree with the conclusion drawn by the thinker Will spends most of his piece praising (Michael Sandel). And it is further remarkable that this would have been the ideal opportunity for Will to explain what “the right thing” was. A few sentences later, he concludes the column with this:

“The moral of the story is: when a court does the right thing for the wrong reason, it does the wrong thing,”

and yet the reader has not been told, so far as I could at first make out, what the right thing or the wrong reason is.

On my first skim through, I concluded that Will thought that sodomy ought to be banned for the good of families on the basis of some kind of distorted understanding of Sandel’s communitarianism.

Will, interestingly, never says what he means by sodomy, though he refers to it as something that can be both heterosexual and homosexual. Random House defines it as “1. anal or oral copulation with a member of the opposite sex. 2. copulation with a member of the same sex. 3. bestiality (def. 4).” Sodom is defined in part as “2. any very sinful, corrupt, vice-ridden place.” And copulation is “1. sexual intercourse. 2. a joining together or coupling.”

On a second glance, I was not at all sure I’d grasped Will’s point. I tried to follow his whole argument this time. He seemed to approve of the freedom to use contraceptives but to prefer that this be justified by the good done to relationships and not by a mere lack of harm done or what Will called, contemptuously, “freedom to choose.” He seemed not to approve of the sale of contraceptives – only of their use. (How you can use them if you can’t buy them, I’m not sure.)

But I could see that I was putting his opinions into my own terms. He thought that “intrusion” in relationships, not a lack of contraceptives, was bad. And he thought that the sale or non-sale of contraceptives couldn’t be “intrusion.” (So maybe he would approve of letting people use guns to help their relationships, but would not object to banning gun sales?)

Whenever someone professes indifference, I try to attribute one view or another to him. I don’t believe talk of indifference. This would explain why I at first thought that he opposed the sale of contraceptives, whereas he would probably claim indifference. But would it be OK with Will to ban the sale of tomatoes or sports utility vehicles? Would such bans interfere with relationships? If not, and if he did not approve of them, what would distinguish them from a ban on the sale of contraceptives?

Next Will turned to the Roe vs. Wade decision, and objected to it because it didn’t tie a right to privacy to benefits to marriage. But how could it have? Should it have legalized abortion only for married women?

The horrible result of these decisions (on contraceptive use, contraceptive sales, and abortion) was, as Will saw it, the courts’ inability to defend anti-sodomy laws on grounds of value to “family, marriage, or procreation.” What good it does for these things he didn’t explain. Nor did he indicate whether he would like married people to be able to legally engage in sodomy.

It remained unclear to me, as well, on this second reading, how promoting procreation fit together with allowing the use of contraceptives (albeit unobtainable contraceptives), or how promoting procreation would promote a type of privacy that was good for relationships. Surely some relationships benefit from the privacy of not engaging in procreation.

Will then explained that Sandel favored allowing sodomy as something good for homosexual relationships, even as Will argued that Sandel’s concern for relationships would allow the criminalization of sodomy. At this point Will turned to some unnamed bigots (he used the term cited above: “thoughtful critics”) who disagreed with Sandel. Will seemed unwilling to name himself as agreeing or disagreeing with these people.

He said that the critics and Sandel could agree that great harm is done in reducing individuals to empty choice-makers. But if resisting that reduction could either legalize or criminalize sodomy, then where was its harmful effect? And what did Will’s moral of the story mean?

I decided to try a third time, and to quote everything so that you could follow along and perhaps help me. Let’s take it from the top:

“Following the U.S. Supreme Court’s logic to a conclusion that the court flinched from reaching 12 years ago, Georgia’s Supreme Court last week struck down the state’s anti-sodomy law. The court said the law violates the state constitution’s privacy right.”

I can’t tell from this whether the court that has done the right thing for the wrong reason is the U.S. Supreme Court of 12 years ago, or the Georgian court of last week, or both. Can you?

“Often, what a court does is less consequential than the reasons it gives for doing it. Indeed, often the reason a court gives for doing something IS what it does. In privacy-right cases running back to 1972, courts are teaching Americans to misunderstand themselves – literally, their selves.”

The present tense of the last sentence would seem to suggest that all the cases Will will discuss, including the recent Georgian one, involve “the right thing for the wrong reason.”

“In 1986, the U.S. Supreme Court narrowly (5-4) affirmed the constitutionality of Georgia’s law that criminalized sodomy. The 1986 case, involving a homosexual, established that consenting adults had no constitutional right to engage in homosexual conduct. (Last week’s case involved heterosexual sodomy.) One justice in the 1986 majority, Lewis Powell, later said he regretted his vote. That was understandable, given the evolution of the court’s rationale for the privacy right from 1961 to 1972.”

Here we would seem to have a “right thing” (criminalizing sodomy or homosexual sodomy, probably the latter). Will mentions that one justice regretted his vote, and explains this on the basis of an evolution of viewpoints that (as we will see) Will strongly disapproves of. So, I am guessing, had Powell voted the other way, that would have been “the wrong thing for the wrong reason.” He voted “the right thing” but had regrets “for the wrong reason.”

“In 1961 the court dismissed on technical grounds a challenge to a Connecticut law banning the use of contraceptives. However, two justices dissented, arguing that enforcement of a ban on USE of contraceptives would require government intrusion into the zone of privacy necessary for healthy marital intimacy. So the privacy right was defined and justified in terms of society’s stake in a valued RELATIONSHIP, not merely in terms of an individual’s right to choose. The right was not – not yet – linked to a government stance of neutrality among various choices people might take.”

Here we seem to have “the right reason.” But it is in a dissent, so the court would seem to have done either “the wrong thing for the wrong reason,” or “the right thing for a wrong reason,” albeit a different wrong reason from the one Will is interested in discussing. The court ought to have abolished the law banning the use of contraceptives, and it ought to have done so out of concern for marital intimacy. (What about nonmarital intimacy?) The curious thing about this passage is that Will complains of a yet-to-arrive government stance of neutrality. How much worse it seems for an individual to take up a stance of neutrality. And, yet, isn’t that what Will does?

“Four years later the court overturned Connecticut’s law, but still not because privacy protects individual autonomy in sexual lives. Rather, because privacy serves ‘a relationship,’ the institution of marriage, which is ‘an association that promotes a way of life’ about which society is not neutral. The court could have reasoned directly from this decision to its1986 decision about Georgia’s anti-sodomy law – if there had not been two intervening decisions.”

Now we seem to be getting very close. It is the 1986 decision that interests Will. It is that decision that was “the right thing for the wrong reason.” If that decision had been modeled on this one, it would have been “for the right reason.” Will is now going to recount how the wrong reason came into being.

“In 1972 it overturned a law that banned not the use but the distribution of contraceptives. Because use was not the issue, neither was intrusive enforcement that would injure the institution of marriage by bringing government into bedrooms. Nevertheless, the court overturned the law, arguing that it violated privacy simply because it unjustifiably interfered with individual choices. The stage was set for the 1973 judicial earthquake – ROE v. WADE.”

Here “the wrong reason” seems to have been born together with a “wrong thing.” At least that’s my guess. Will doesn’t explicitly say whether he approves of the 1972 decision apart from its reasoning.

“The radicalism of that decision, which established a broad constitutional privacy right to abortion, stemmed from this fact: the court severed the justification for the privacy right from any contribution that right makes to the socially valued relationship of marriage. Instead, the court said the privacy right ‘is broad enough to encompass a woman’s decision’ to terminate a pregnancy. Mere deciding, not marriage, was what mattered. One justice, using the language from the 1972 decision, stressed ‘the right of the INDIVIDUAL [the court’s italic], married or single’ to enjoy ‘freedom of personal choice,’ without inhibition by husbands or parents.”

Here Will is very clear about Roe v. Wade’s involving “the wrong reason.” It may be that he also sees it as “the wrong thing.” I’m inclined to think so, because “the right reason” he mentions seems so goofy. How does a right to abort promote marriage, much less family or procreation? And, besides, must there not be some tendency for “wrong reasons” to lead as a general rule to “wrong things” if we are going to worry about “wrong reasons” at all? If we can repair every law by attributing “the right reason” to it, then what is the point?

“The court had arrived at what Harvard’s Michael Sandel, in his book ‘Democracy’s Discontent,’ says is a privacy right defined in terms of a ‘voluntarist conception of the person.’ Henceforth, government would strive to protect individuals’ autonomy in making certain important choices, while remaining neutral about the content of those choices. Which is why in 1986 the court seemed inconsistent in upholding Georgia’s ban on consensual adult sodomy.”

Now we have what has clearly been labeled “the wrong reason” serving as an explanation for why the 1986 decision seemed unacceptable. This would seem to depend on a certain connection between “reasons” and “things.” The “wrong reason” here, all by itself, without being officially assigned to a decision, is seen as coming into conflict with a decision, presumably a “right” one.

“It was too late for the court to say that homosexual activity is outside the zone of protected privacy because it has ‘no connection’ with ‘family, marriage or procreation.’ Since 1972, the privacy right in sexual contexts has had no necessary connection with those social relationships.

“Upholding Georgia’s proscription of sodomy, the court in 1986 insisted, correctly but awkwardly, that moral neutrality is not a constitutional necessity of law because ‘law . . . is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated . . . the courts will be very busy indeed.’ This is true, but the court was locking the barn door after selling the horse.

“The court had put its prestige behind the idea that individuals should be thought of as freely choosing selves ‘unencumbered’ (Sandel’s word) by social roles or relationships that society values. Is it merely coincidental that, as the court has been embedding this ‘voluntarist’ image of the individual in constitutional law and the country’s consciousness, marriage has been increasingly treated as just another choice, to be casually made – and unmade? Society’s neutrality has resulted in no-fault divorces.”

Here Will seems to actually have a point, though it took me three readings to find it. But I’m not sure it’s as much of one as he believes. One way to promote marriage would be to allow homosexuals to marry. How banning sodomy promotes marriage I’m really not sure. And I’m not sure that a ban on sodomy that claimed to be intended to promote marriage would make much difference. Nor do I suspect that I place as much value on the relative importance of marriage to human happiness as Will places on it in his scheme of “right things.”

Since Will saw the 1986 ban on sodomy as “the right thing for the wrong reason,” (or, rather, for a correct but awkward reason) he presumably sees last week’s striking down of that law as “the wrong thing for the wrong reason.” His hero, Sandel, however, according to Will, sees last week’s ruling as “the right thing for the wrong reason.” They agree that the reason is bad, but disagree on whether the decision is a good one.

“Sandel is a liberal, but is uneasy with the reasoning that courts use to give liberals some victories. He would overturn Georgia’s law and broadly affirm gay rights by recurring to pre-1972 reasoning about privacy. He would have the law regard homosexuals, like everyone else, not simply as sovereign choosers ‘unencumbered’ by social roles and relationships society wants to encourage. Sandel would ground the elemental gay right (to intimacy protected from intrusive government) in society’s stake in encouraging homosexual unions that are (to borrow language from the 1965 decision) ‘intimate to the degree of being sacred . . . a harmony in living . . . a bilateral loyalty’ in an association for a ‘noble purpose.’

“Some thoughtful critics will say courts should not employ such language to give society’s imprimatur to homosexual intimacies. And these critics will insist that such assigning of social values should generally be done not by courts but by political, representative institutions. However, Sandel and his critics can agree that much damage is done when we define human beings not as social beings – not in terms of morally serious roles (citizen, marriage partner, parent, etc.) – but only with reference to the watery idea of a single, morally empty capacity of ‘choice.’ Politics becomes empty; citizenship, too.”

But don’t many of our most backward and vocal citizens (I refer, of course, to the Republican Congress) want politics to be empty, if not unintrusive? Wouldn’t they be happy to have their governments define them as “empty choice makers,” just as their doctors define them as conglomerations of organs, their local McDonald’s defines them as consumers of hamburgers, and so on? What does the fact that people have relationships have to do with the general shape of laws or with, specifically, a ban on sodomy? Why does Will want his government to be unintrusive AND to actively work to encourage a particular lifestyle? Or does he just want it to be unintrusive for married people?

“The moral of the story is: when a court does the right thing for the wrong reason, it does the wrong thing.”

But when did a court do this? As far as I can tell, Will ranks the following decisions thus:

1961 wrong thing for technical reason (right dissent for wrong reason)
1965 right thing for right reason
1972 wrong thing for wrong reason
1973 wrong thing for wrong reason
1986 right thing for right but awkward reason
1998 wrong thing for wrong reason

So the court’s blunder in reasoning was in the wording of the ’61 dissent. Everywhere else the reasons fit the things. The ’61 court made the mistake of not defending contraceptive use on the basis of its benefit to marriage, family, and procreation. Surely Will demands a little much.

A stance of neutrality is nonsense. The “privacy right” covers things approved of and not things disapproved of. The trouble is just that Will doesn’t approve of the same things that some other people approve of.

The sad thing is that Will was not able to be any more honest about his opinions here than are those who are trying to punish by round-about means the sexual activities engaged in by Bill and Monica.

December 1998