European Stars And Stripes (Newspaper) - July 20, 1986, Darmstadt, Hesse                                Page 10 columns the stars and stripes sunday july 20,1986 Anthony Lewis anti sodomy decision seen in a different Light Rit is Midnight in a posh Atlanta suburb. Joan and Tom Doe Are in bed. Suddenly three state police men burst into the bedroom. Flashlights catch the does in what Georgia Law Calls illegal sex. They rearrested prosecuted convicted and sentenced to 10 years in the Penitentiary. That scenario has not happened. It is not Likely  the Georgia sodomy Law upheld by the supreme court makes no distinction Between homosexual an heterosexual conduct. It condemns Oral and anal sex by anyone punishing it by up to 20 years in  at the Georgia Law As it is actually written puts the supreme court decision in a different Light from the one in which it has been widely viewed. In that Light i wonder whether the self styled conserva Tives who happily applauded the decision knew what they were  Georgia Case was brought by Michael hard Wick a homosexual who asked the Federal courts to declare the state Law unconstitutional. The supreme court dealt with his suit in a Way that showed the to Kilhof the Legal adage that he who defines the question often determines the  5-to-4 majority said Hardwick was asking the supreme court to find in the Constitution a fundamental right to engage in homosexual Sodo  Justice Byron r. White speaking for the court dismissed that claim As one denied by history. Laws against homosexual acts he said have ancient  Justice Warren e. Burger in a separate opinion spoke of millennia of moral  morality does not solve the real problem in the Case. So we can see if we look Back to the greatest of modern conservatives on the supreme court the late John Marshall Harlan to his opinion when the court in 1961, first considered a Connecticut Law Mak ing it a crime to use  Harlan rejected the claim that states have no business writing moral precepts into Law they do that Al the time he said. But when a state expresses its moral views by regulating behaviour he said the crucial Issue for constitutional judgment is its Choice of  Connecticut Harlan said is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full Power of the criminal Law. Potentially this could allow the deployment of All the incidental machinery of the criminal Law arrests searches and  and there exactly was the real Issue in the Georgia Case the intrusion of the criminal Law into the bed room. The Constitution Doe not mention  it protects Liberty from state deprivation with Ellen Goodman one Peak out due process of Law. And As Harlan said the Pri Vacy of the Home in its most Basic sense must be a fundamental part of Liberty " if the Georgia authorities had prosecuted and convicted a Mamed couple under the sodomy Law the supreme court would surely have had to face the real Issue the stale s intrusion into the bedroom. A Georgia couple calling themselves Doe in fact tried to join the Case but the lower courts held that they lacked standing similarly if a homosexual had actually been convicted and sentenced under the statute the supreme court would have found it More difficult to avoid seeing the real character of the Law. Indeed Justice Lewis f. Powell said that a conviction and sentence of Long duration would raise a question of cruel an unusual punishment in vol Alion of the eighth Amend ment to the Constitution. But Michael Hardwick was not convicted of any thing. He was arrested after being discovered in Homo sexual activity but Georgia prosecutors declined to press the Case. He then brought his civil suit against the statute. It is an old Rule a conservative Rule that the supreme court will not decide constitutional issues in the abstract. Concreteness brings meaning to the is sues. Yet Here the court rushed to pass judgment on a criminal Law that was. Not pressed against Hardwic Kand has not been used against anyone for decades. The Hardwick Case will be seen i believe Asa classic example of unwisely taking constitutional is sues to the courts prematurely. White made a Point of saying that the court was not passing on the desirability of Laws like Georgia s. But the late Alexander bide reminded us that the supreme court is a legitimating Force too. If the unnecessary sodomy decision Doe anything it will tend to legitimate atavistic attitudes in our society.  California Campaign imperils society s Anchor the courthouse hallway is lined with Lack and White photographs sober portraits of justices past and present. Only one face stands out of this Small gallery. Rose Elizabeth Bird the Only female and the Only photograph in full color. The chief Justice of the California supreme court colourful complicated Strong willed articulate is in More ways than one the most visible Justice in Testate s history. This 49-year-old woman whose Cham Bers hold enough plants to fill a health food restaurant is known for setting precedents. She set one when she was appointed to the  May Well set another if As predicted the voters remove her in november. The ugly Campaign to dump Justice Bird to wave Bye Bye Birdie As one of the Many demeaning slogans puts it has become a Symbol of the attempt by right Wing politicians to take Over the judiciary. As the chief Justice sees it if you re a pressure group an you want to capture a Branch of government there s one Branch that does t change every few years. Once you ensconced somebody who will basically reflect whatever View you want you have it locked in Formant Many  ironically this is the state where Ronald Reagan first Learned his lesson about the Independence of judges. As governor he appointed Bird predecessor Donald Wright. And when Wright did t Rule to his liking Reagan described this As the biggest mistake i Ever made my worst appoint ment  he has been careful since to pick Federal judges surely William Rehnquist and Auloni Scalia for instance who adhere to his politics and pass his litmus tests. But in Washington where the judiciary is Chang ing by appointment Federal judges still have the in dependence of life tenure. In California where justices usually Are reconfirmed at the ballot Box every eight years there is now a politics of second gues sing. The California litmus test is not abortion As it is i Washington but another life and death Issue capital punishment. Since a ballot initiative in 1978 restore capital punishment the California supreme court has ruled in 55 death penalty cases and approved Only three of those penalties. It was Rose Bird who voted to overturn All three. She never voted alone. Indeed Justice Bird insist that her reversals were based on flaws in the Law. But she has been successfully targeted female progressive uppity soft on crime As a Justice who is thwarting the Public will. It has been hard to respond to the Slick Campaign of slogans and bumper stickers. We Are an institution that deals in Grays in an age where everything has to Neblack and while and 30-second spots she says uneasily. It s awfully difficult. To try to talk about a institution that protects unpopular people As Well As the  indeed out of stubbornness or integrity jus Tice Bird has made a conscious decision one that Dis Mays her supporters not to hire the Battery of Consul Tants speechwriters and and men that constitute apolitical Campaign these Days. We the judiciary Are implementing the Law. We re not sitting Here pleasing pressure groups. And if we go about a dialogue with the people doing that we. Destroy what is special Inthis institution she insists. The daughter of a widowed factory worker woman who has been deeply influenced by her experience with breast cancer Justice Bird is determined to Campaign her own Way As herself. She has modified neither her opinions nor her free flowing talk about the journey of life language rarely found in judicial Chambers. She most assuredly has not followed the advice of some supporters who urged her to vote for just one  if i do it in order to get Back into office i won t Bethe same judge again she says. Ill be a judge who thinks More about re election than about the Law. An when do you Stop putting your Finger up to the wind that s what is at stake. The judiciary has never Bee totally isolated from politics. Justice Bird was appointed by an elected governor. But when judges become one Issue candidates when they make decisions with one Eye on a pressure group and a pollster this will Bea different society. We will As Bird says have a society without  we will have exchanged the court s Long View for the moment and damaged the one Branch of government that in t at the whim of politics. In califor Nia we May find out How easy it is to replace the Scales of Justice with a Finger in the wind