UN. 27, 2003: SODOMY IN TEXAS
DAVID FRUM - NRO
Lawrence v. Texas does more than strike down an archaic and unenforceable law. It does more than stretch the Constitution in directions unintended and unimaginable to the Constitution's authors. It is above all things a case that opens the way to a wild new era of judcial activism. Here's why.
You have to read Lawrence in conjunction with another case, Romer v. Evans, decided in 1996.
Romer involved a voter initiative in state of Colorado: Proposition 2. Some towns in Colorado had amended their municipal law to include sexual orientation as a prohibited grounds of discrimination. The voters of the state then amended their state constitution to stop the towns and to settle the legal status of homosexuality in the state. The argument that won the day in Colorado was something like this: "We Coloradans regard homosexuality as a private matter, like smoking. If you are homosexual, that's fine, that's your business. But we're not going to use the power of the state to punish people who disapprove of homosexuality. That's their business. We want our laws to be neutral on the subject, neither anti-gay nor pro-gay."
That argument lost. In a decision written by Justice Kennedy, the court held that removing sexual orientation from a state's list of protected categories, that is, removing it from the list beside race and national origin and placing it on the same list as smoking, left-handedness, and so on, was an act of "animus" against a class of citizens and therefore a violation of the Equal Protection promises of the federal Constitution.
Now here's the part that is relevant today. As Justice Scalia pointed out in his dissent, it would have been perfectly constitutionally OK in 1996 for the state of Colorado to criminalize homosexuality altogether by passing a sodomy law. The effect of Romer was to offer states a stark choice: Either you treat homosexuality as a crime, as Georgia does, and as we upheld in Bowers v. Hardwick in 1986. Or else you treat it is a protected category. There's no in-between. Neutrality is not allowed.
See where this takes us? This week, the Supreme Court overturned Bowers v. Hardwick. States will no longer be permitted to treat homosexuality as a crime. By the logic of Romer that leaves them (as this Supreme Court sees it) no option but to treat it as a protected category.
In other words, every form of distinction now drawn between homosexuality and heterosexuality, from the ban on avowed homosexuality in the military to the non-existence of same-sex marriage, has overnight become constitutionally suspect.
That does not mean, it should be said, that they are constitutionally doomed. Justice O'Connor may bring her famous fuzzy logic to bear and say, like a child plucking daisies, "I like this rule, I like this rule not." So we may see a series of 5-4 votes in favor of overturning those rules that seem somehow archaic to her while sustaining 5-4 those rules that please her. It's anybody's guess which will be which. But in the end, all of them will likely be struck down.
One last thought: In the past week, we've been given some of these most powerful dissents in recent history, two by Justice Scalia, two by Justice Thomas. It is very striking to me to see the difference between the two, Scalia's witty, slashing, devastating; Thomas? grave, eloquent, and sorrowful. We have in these two men two of the greatest jurists of the 20th century. One of them, Justice Thomas, has been the target of scurrilous attacks that continue to this day. He has not flinched or retreated or in any way been infected by the bitterness of his detractors. He's shown himself more than a great lawyer; he's a great man. We're lucky to have him on the bench, and in American life.
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