Justice Rip Van Winkle

Bless the federal judiciary. Sure, its members are not perfect--way too many white guys to be truly representative, for one thing--but in this system we call checks and balances, appointed judges with life tenure seem to be all that stands between American citizens and sycophantic leadership. Sandwiched between the legislative, poised for the next election cycle and watching the voters the way a cat watches a mouse hole, and the executive, poised for the next election cycle and watching the voters the way a spider watches an ant, the members of the judicial branch have emerged as the last group watching the Constitution. Frequently right, often thoughtful, even apolitical.

With some notable exceptions.

As its last hurrah of this latest term, the U.S. Supreme Court handed down a decision that was hugely revolutionary when it ought to have been largely unremarkable. The majority of justices decided that private sexual conduct between consenting adults is not the business of the government and struck down state sodomy laws that criminalized homosexual acts. In the minority was Antonin Scalia, who read his dissent aloud to onlookers, some of them weeping gay men and lesbians overwhelmed by being recognized as full citizens of their own country.

Scalia's contrary opinion evoked that old chestnut, the "homosexual agenda." (What is the homosexual agenda? Refusing to wear Dockers?) And he added, in a stunning justification, "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their homes." Tweak that sentence to read "persons who openly engage in Islam" and see how it reads as a high-court opinion in an allegedly free country.

But the most notable aspect of Scalia's decision was not its prejudice or its prurience but its politics. His words were openly partisan, designed to call to arms the social conservatives who have long insisted that an activist court is the aim only of the left. And as such he did a grave disservice, not only to gay men and lesbians, but to the body in which he is privileged to sit and the principles for which it still stands in a rapidly eroding civic climate.

To read Scalia's decision is to wonder whether he was writing about sodomy laws or abortion rights. While the majority mentioned Roe v. Wade as one of several past decisions that have found a right to privacy in intimate decisions, Scalia dwelled on it, even beginning with a quote from the original opinion. He referred disdainfully to the contentious decision to allow legal abortion as one "which today's majority has no disposition to overrule," but added that if the court was willing to dispense with its last ruling on sodomy laws, handed down 17 years ago, it surely must understand that Roe, only a decade or so older, may also be at risk. In other words, he threw down a gauntlet: this means war--"culture war," in his own words. His fellow travelers got the reference. "The good news is that it opens the door to reversing Roe v. Wade," Phyllis Schlafly told The New York Times.

Actually, the good news is that the reaction to the decision showed how far out on a right wing Scalia has gone. Even a conservative pundit like Bill O'Reilly could be heard on television supporting the right to privacy in sexual matters, and Justice Clarence Thomas, Scalia's ideological sidekick, wrote that he found sodomy laws silly. When Scalia shuddered, "What a massive disruption of the current social order," he seemed to be channeling the social order of the 18th century. Could he be referring to the social order in which families have accepted the partners of their gay sons and daughters, and communities have welcomed gay moms and dads, in which gay people are in all walks of life, including the church and the Congress? The justice went on to warn of the imminent legal acceptance of such practices as bestiality, adultery and masturbation. Bestiality can be handled under animal-protection statutes, and adultery is best handled by conscience. And are there really laws against masturbation? Who are the masturbation police?

The litmus list that right-wing groups will be presenting to the president if there is a vacancy on the high court grows longer with each passing day of human progress. Abortion was at the top of the list, but it has now been joined by affirmative action and gay rights. (Maybe even masturbation.) The alleged goal is to counter the "biased" court of the recent past. That court is made up of justices appointed over three decades by five different presidents, four Republicans, one Democrat. And because they can't be fired--thank you, Founding Fathers--they can render opinions without watching the voters the way a hawk watches a newly mown field. The sour puritanism of Justice Scalia's latest tirade has gotten most of the ink, but it is the flagrant politicization of his response that is most worthy of censure. A states'-rights guy, he should know that if he wants to give a stump speech for ultraconservative values, he should run for the Senate. Perhaps from one of the 13 original Colonies.