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Mohawk: These Supreme Court decisions do not signal a trend

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Earlier this year, in Lawrence and Garner v. Texas, the Supreme Court turned to the issue of the criminalization of homosexuality under state laws and found, by 6-3, that such laws are unconstitutional. Texas was one of only four states which had such statutes, but the implications of the decision go far beyond Texas and offer a glimpse into how the American political system works. It's an important lesson. In crafting the decision, Justice Kennedy and the majority on the Court were careful to base the ruling on the issue of due process and not equal protection so that states wishing to criminalize homosexuality could not do so by simply rewording the statute.

One of the arguments to uphold the statute was that it offered equal protection because it forbade heterosexuals as well as homosexuals to engage in same-sex activity. This was a variation on an old and cynical argument that poor people and rich people alike are forbidden to sleep under bridges, and therefore the law treats everyone fairly when it was perfectly clear that the purpose of the law was to disadvantage poor people.

Justice Antonin Scalia issued a scathing dissent that echoed the fears and prejudices of the far right wing of religious conservatism. Under this ruling, he fumed, laws against all kinds of things - prostitution, masturbation, bigamy, fornication, to name a few - would be found unconstitutional. He was especially unnerved that the decision revisited and overruled a 1986 case from Georgia, Bowers v. Hardwick, which had upheld anti-sodomy (and anti-homosexual) criminal statutes. (Georgia has since struck the law the Supreme Court then upheld.) How, Scalia asked, could the Court reverse Hardwick and not reverse Roe v. Wade, a case which made abortion legal? It was reminiscent in kind, but not in content, of Justice Harry Blackmun's angry dissent in Hardwick. Justice Clarence Thomas joined with an opinion that if he had been a Texas legislator he would have voted against the statute, but he didn't see it as the business of the Court to overturn the good works and judgment of the elected officials of that state.

Within Judge Thomas' opinion we can find a major tenet of radical conservatism in America. Should the Supreme Court see itself as a vehicle to bring the backwater jurisdictions in America to the 21st century? Justice Kennedy made reference to the fact that European courts were acknowledging rights of homosexuals, and the fact that he mentions precedents in such courts did not sit well with Scalia. Kennedy also mentions that attitudes and opinions have changed within the American general population, and that people are far less prejudiced against homosexuals than they were 50 years ago, a fact which Scalia also finds unsettling.

Conservative columnist Cal Thomas referred to the decision as the "end of the Constitution," and there were complaints among some social conservatives that what was at work was the "tyranny of the majority." According to this line of thought, when the American public changes its mind, the role of the Supreme Court is to stand by and wait for each state, and presumably each county, to catch up on its own time. Senator Majority Leader Frist promised to try to get a constitutional amendment against gay marriage. But if it's true that times have changed since 1789 (and they have), the chances of passing an amendment specifically targeting gays are considerably bleaker than they have been.

Clarence Thomas' idea that Texas' sovereignty is practically inviolable would have meant, in 1863, that Texas would have the right to legalize slavery even after the Emancipation Proclamation. Slavery, although ultimately outlawed by amendments to the Constitution, was not challenged by the Supreme Court. Indeed, the most famous decision, Dred Scott, found slavery to be an honorable form of property management. That decision came about a half century after slavery had been outlawed in all industrialized western countries except the United States. Indeed, the United States would ultimately be about three generations behind the rest of the world on the issue of slavery, and states like Georgia and Alabama would never have abandoned it on their own and in fact went to war to preserve it. War, it has been said, is politics by other means. Some social conservatives have vowed to take the gay rights issue to a new level of cultural war.

This is what makes this year's court-watching so educational. Although all sides wish they could appeal to a higher authority - one which supports their views - law is ultimately about politics. A case which had one outcome in 1953 might well have a different outcome if tried in 2003 even when the law has not changed. The Supreme Court of the radical right appeared to have taken a turn to the left, but it is stacked with conservative judges acting on conservative political principles including rights against the powers of the State to invade people's homes and private lives. They are poised to enact other conservative principles, including shoring up the rights of the states wherever possible. In a political environment in which competing economic interests sometimes trump the needs of future generations for healthy forests and minorities for a right to an adequate education, even a nod to evolving principles of international legal standards is a courageous and progressive act. And an isolated one.

The struggle between federal authority and states' authority goes back to the founding of the republic. One of the earliest treaties signed by the United States, the 1794 Canandaigua Treaty committed the federal government to the principle that federal authority in Indian affairs supercedes state authority but, in the 1960s, when the courts were called upon to enforce the provisions of the treaty which defined Indian rights, the courts declined to do so. No one should think that the actions of the Court this year signal a paradigm shift in the culture and thinking of the Court such that the rights of minorities including the long-suffering Indians are going to gain substantially any time soon.

Some of the Supreme Court members may have children and other family members who are gay and might be influenced, however indirectly, by that fact, but none of them have relatives who are tribal members living in Indian country.

John C. Mohawk, Ph.D., columnist for Indian Country Today, is an author and professor in the Center for the Americas at the State University of New York at Buffalo.