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Government's Power to Require "Good Morals" and Adherence to Traditional Values

April 3, 2000

Every so often a president is elected at a time when circumstances provide him with an opportunity to leave legacy with a deep and lasting impact on our quality of life and, if not the future of our nation, at least its short term direction.

Under our system of government, interpretation of law, and more importantly interpretation of the meaning and intent of provisions and guarantees contained in the Constitution itself, falls to the courts. If a question cannot be resolved in the lower courts, state or federal, the final decision is left to the Supreme Court -- nine individuals who, in the final analysis, are the protectors of the Constitution and guardians of our freedoms and our liberties.

Once the Supreme Court has decided an issue, there is no appeal, except through passage of a Constitutional Amendment, which the Founders guaranteed would be a long and arduous process -- a silent footnote intimating "Do you really want to mess with this document?"

In their effort to create a sound Republic, the Founders created the three-branch form of government with which we are all quite familiar, or should be. Their purpose -- arrived at following considerable and not always civil debate -- was to ensure that each branch of the federal government could check the activities of the others and provide balance against possible excesses.

Remember, the men who crafted our federal system were leaders of a hard fought and only just-won revolt against the tyranny of a strong, centralized, national government which routinely and arbitrarily imposed its will on its citizens, at home and abroad in its colonies. They did not want history to repeat itself.

To ensure that no despot or ideological faction could in the future thwart the checks and balances crafted into the Constitution, the framers did three very important things. Among these, they gave to the president the power to appoint members of the Supreme Court. They gave to the Senate the power to approve -- or by not approving, to veto -- the president's nominees. And, they gave Supreme Court justices life tenure; they serve until they die or retire by choice.

Today, the nine individuals who sit on the Supreme Court are the ultimate guarantors of the Constitution and guardians of our freedoms and our liberties. For this reason, the outcome of this year's presidential election is more crucial than in recent years.

The calendar for the current Supreme Court term is filled with cases the decisions of which will directly and indirectly impact the lives of gay and lesbian Americans. The court's decisions in these cases can easily be swayed by one or two justices. The 2001 through 2010 court terms will see even more contentious cases of like importance to our community come before the Supreme Court.

The Supreme Court is about to become an institution up for grabs. The individual who is elected president in November will hold the brass ring.

One Justice, Sandra Day O'Connor, is expected to retire soon. Chief Justice William Renquist and Justice John Paul Stevens are also expected to retire during the next presidential administration. Justice Ruth Bader Ginsberg, still suffering from poor health due to an illness last year, is another who may give up her seat on the court in the near future.

Assuming that the four Justices mentioned do retire, those remaining are a mixed bag. Justices David Souter and Anthony Kennedy are considered to be moderates whose opinions vary case to case, from conservative to progressive. Justice Stephen Breyer tends to be more conservative than either Souter or Kennedy. Justices Antonin Scalia and Clarence Thomas are embedded up to their kneecaps in the steel-reinforced concrete of right wing ideology. When one snaps his heels, the other's arm spasms skyward.

About now you're probably asking yourself, 'What does all this mean to me?' The answer is simple -- it should mean a lot, and it should scare the heck out of you.

In its recent decision re: CITY OF ERIE et al. v. PAP'S A. M., tdba "KANDYLAND," handed down at the end of March, the Supreme Court reinstated an Erie, PA., law against nude dancing. In its 6-3 decision, the court rejected arguments that such exotic dancing is expressive conduct worthy of First Amendment protection. For a full explanation, see http://www.nytimes.com/library/politics/scotus/articles/033000pa-strip-restrict.html

In the PAP'S A. M. decision, a majority of the justices said that the city of Erie was trying to regulate conduct, and therefore was not impermissibly impinging on free speech. In reporting on the decision The New York Times wrote, "The justices splintered in their rationale, just as they had nine years ago when they upheld an Indiana public indecency statute outlawing totally nude dancing. But the upshot of the collective opinions today is a First Amendment standard that gives cities great leeway in regulating nude entertainment."

One unique aspect of how the Supreme Court renders decisions is that justices may agree with a majority decision but author an opinion offering a different rationale for their agreement. These supporting opinions can have a great influence on how local, state and federal laws are interpreted and re-interpreted by the lower courts. This tactic is often employed by Justices Scalia and Thomas as a means of advancing their ideological agenda.

According to The New York Times, Scalia and Thomas "also voted to uphold the Erie law but based on a standard that would make it easier for cities to restrict nudity, asserting that 'the traditional power of government to foster good morals . . . and the acceptability of the traditional judgment . . . that nude public dancing itself is immoral, have not been repealed by the First Amendment.'"

That is a very important and very frightening statement when issued by two Supreme Court justices. What it means is that government does have right to monitor and rule on morality, perhaps even in American bedrooms; that acceptable moral standards are those which adhere to the majority's "traditional judgment" or values; and that matters of morality are not necessarily protected by the First Amendment.

(Am I reading the above right? Should it be are or are not protected?)

This largely ignored supporting opinion penned by Scalia and Thomas is nothing less than a sledge-hammer blow against the cornerstone of the Bill of Rights. No doubt more will follow.

If George W. Bush receives his party's nomination (which, barring his untimely death due to being hit on the head by a falling bag of money is pretty much a certainty) and is elected president, he will be able to appoint between two and four Supreme Court justices during his first term. Chances are, unless there is a shameless Quisling like Robert Bork among them, they will each be approved by the Senate regardless of that body's political makeup. The only thing which might possibly change this reality would be if the Democrats gain overwhelming control of the Senate this November, and that is not likely.

The possibility of a Supreme Court consisting of between six and eight justices all of whom are to one extent or another in ideological tune with Scalia and Thomas, and are led by them, is something which should send an icy chill up the spine of moderate, liberal and progressive Americans, gay, straight, bisexual or asexual.

This is why this year's election is crucial not only to gays and lesbians, but to all American who believe in the true promise of our Constitution.

The election results, in terms of selecting a president, are in and of themselves, relatively meaningless. However, Supreme Court justices appointed by the next president will shape the law of this land for years to come. Their decisions will either move us forward as a people and as a nation, or they will turn the country's social and constitutional clock back at least three decades, dilute the effect of the Bill of Rights, and set the constitutional groundwork for the ascendancy of theocratic fundamentalism as a driving political force within American government.

This must not . . . no, this cannot be allowed to happen. But how can we prevent a George Bush victory on November 7?

Between now and September, each and every one of us should ask our friends if they are registered to vote.

We should all urge, cajole, and even insist that those who are not registered, get registered. If necessary, we should physically take our unregistered friends to a place of registration and get them signed up.

In gay neighborhoods and in gay businesses, we should say hello to perfect strangers and ask that they be sure to register and vote in November.

We should ask the owners of gay and gay friendly businesses to post signs in their places of business reminding people to register to vote, and including the registration cut-off date for their state or county. If a bar or business owner balks at "mixing politics with fun," organize some friends and picket the establishment until they post the signs.

And most importantly, we should all call everyone we know on the evening of November 6 and remind them that the election is the following day.

To many, this may seem like a great deal of effort and even an invasion of the privacy of others. No doubt, few will want to bother or impose on their friends in such a way. After all, who really cares about politics?

To those in our community who may think this way, we say this; keep in mind that every person you know who does not vote this November is in effect casting a vote to restrict your freedom . . . limit your liberty . . . and a vote in support of government intervention into who you love . . . and with whom you make love.

People who do that are not your friends.

Paul Kovach is a public relations professional from Pittsburgh, PA. An active member of the Pittsburgh gay and lesbian community, Paul serves on the NationalGayLobby.Org board of directors.

Michael Romanello is a long-time activist for gay and lesbian equality. A retired newspaper publisher, editor and syndicated columnist, he serves on the NationalGayLobby.Org board of directors and as its executive director.

Arlington, VA

Permission to forward and publish in entirty is granted without condition.