WASHINGTON, April 4 (UPI) -- This country is in the midst of a series of profound and unpredictable changes, and not only in the legal arena.
It may not seem that way as we go about our everyday lives: Most people who live through history rarely notice what is happening while it is in motion. But historic change is occurring, nonetheless.
The ground is moving under your feet.
As usual, the change occurring in the courts is more incremental, while society races ahead. However, the mere fact that change is occurring in our staid courts of law is an indicator of how sweeping it is.
Two cases before the Supreme Court over the last two weeks are examples.
In the first, a gay couple is challenging the Texas ban on homosexual sodomy. At first glance, the dispute, while of interest, has little effect on society at large. Only four states, including Texas, make homosexual sodomy alone illegal; nine others make sodomy illegal no matter who engages in it, whether heterosexual or homosexual.
But a closer look reveals issues that are much larger.
The gay couple is challenging the Texas ban not only on the grounds that it unfairly singles out homosexuals -- the 14th Amendment guarantees equal protection under the law -- but also on the premise that all adults, not just homosexuals, have a "liberty and privacy" interest in keeping government out of the nation's bedrooms.
Most American adults, especially heterosexuals, probably assume that what they do in the privacy of their homes is their own business. Not so.
A Texas official, appearing before the justices, gave the traditional argument: That states have the right to regulate the sexual activity of all adults, "conceding" that the right does not extend to the marriage bed.
"Texas may have conceded that, but I haven't," Justice Antonin Scalia said from the bench.
Scalia is in the minority. As much as he'd like to restrict marital relations to the missionary position for procreational purposes only, a majority of the Supreme Court appears ready to strike down the Texas law.
There is an outside chance -- a slim one, but still a chance -- that the court will tell the government to get its nose out of the bedroom altogether.
More likely, a majority of the justices will say the Texas law violates the equal protection clause of the 14th Amendment, and not reach a conclusion on whether there is a constitutional "liberty and privacy" interest in a private sex life.
The second case before the Supreme Court, heard earlier this week, deals with that familiar controversy, affirmative action.
The University of Michigan gives blacks and some Hispanics a bonus when it evaluates applicants to its undergraduate program and its Law School. White students, who would have been admitted to the school if not for their skin color, are challenging the admissions policies in separate cases.
The white students say giving applicants an advantage because of their race violates the equal protection clause and the Civil Rights Act.
There is an edge of irony here. For 400 years the Supreme Court and the rest of the nation were content to let black people be the target of "negative" action, but a quarter-century of affirmative action for the same group of people is more than the poor old Constitution can stand.
It's likely that eventual Supreme Court decisions in these cases will be written or heavily influenced by a key swing vote, Justice Sandra Day O'Connor. She has consistently struck down government actions based on race, but has always left the door open for some sort of racial remedy.
That means the Supreme Court rulings in the University of Michigan cases probably will trim back the school's affirmative action programs somewhat, but will not outlaw them altogether. The wriggle room, however, will be narrow.
While all this is going on at the Supreme Court, the pinnacle of the legal pyramid, other societal changes are beginning to make their appearance in the lower courts.
We are a country at war, and the changes in the law, and in the level of surveillance in this country, have been revolutionary since the Sept. 11, 2001, terror attacks. Some of those changes will be tested in the courts, and not all will pass constitutional muster.
The ability of the FBI and other government agencies to conduct intelligence operations in the United States has been magnified to an extraordinary degree. Given the task they have been given -- preventing another Sept. 11 -- this is logical.
But the price this country will pay in freedom and privacy is still being tallied. The final bill may be heavy. In 10 years, virtually everyone in the United States, citizen and alien alike, will be in some kind of government data base, for good or for ill.
With the advent of war in Iraq, we are already paying a price in freedom of speech.
The late 1960s and early 1970s were the time of the left-wing bully, people who reviled and even spat on soldiers returning from Vietnam. Their behavior was obviously contemptible, no matter what your feelings about that war.
Now it is the day of the right-wing bully.
Politicians who oppose the war are accused by radio demagogues of treason. A Pentagon general says critics of the U.S. war plan -- the trimmed down version that left our supply lines vulnerable in Iraq and led to the capture and deaths of U.S. soldiers -- are "undermining" the troops with that criticism.
On the Comedy Central cable channel Thursday night, a group of comedians talked about how much they want to "punch the peace marchers in the face," while a New York audience cheered.
There have been big changes in the American dialogue, and some of those changes are ugly.
Whether you support the war or not -- whether you even support the way the way is being fought or not -- is this the kind of America you want?
