Heavy on the law involved, but interesting. Will Gay Marriage cause a backlash? TWT
DAILY EXPRESS
Sex Appeal
by Jeffrey Rosen
Only at TNR Online
Post date: 06.30.03
"Is Lawrence worse than Roe?" read an e-mail message sent by Crisis, the conservative Catholic journal, after the Supreme Court last week struck down every sodomy law in America. And the answer, for liberal and conservative defenders of judicial restraint, should be unequivocal. Yes, as a constitutional matter, Lawrence is worse than Roe. The Court could have struck down Texas's sodomy law on the narrow grounds that it violated the equal protection of the laws by forbidding homosexual but not heterosexual sodomy. But instead the Court embraced and extended a sweeping and amorphous right to sexual liberty that is even harder to locate in the text or history of the Constitution than the right of reproductive autonomy that the Court discovered in Roe. By resurrecting an unprincipled and unconvincing constitutional methodology, the Court will energize the conservatives who have lost the culture wars, and will allow them to cast themselves as judicial martyrs rather than political losers.
The more modest case against the Texas sodomy law was set out by Justice Sandra Day O'Connor in her concurring opinion, and it goes something like this: Texas is one of only four states that bans sodomy for homosexuals but not heterosexuals. A state should be free to criminalize acts that it considers immoral, but a state may not ban those acts only when committed by certain classes of people. The only reason to ban sodomy for homosexuals but not heterosexuals, O'Connor suggested, could be "a bare ... desire to harm a politically unpopular group," and the Court has consistently held that this is not a legitimate state interest. The constitutional guarantee of equality prohibits laws passed for the sole purpose of signaling that some groups of people are inferior to others--there is no caste system in America--and for this reason, Texas's anti-sodomy law had to fall. An opinion striking down the Texas law on this ground would have left the states free to ban sodomy, or other sexual practices of which they disapproved, such as bestiality or prostitution, as long as they do so in an even-handed way.
But in his opinion for the Court, Justice Anthony Kennedy preferred a far more grandiose approach. He said the case "involves the liberty of the person both in its spatial and more transcendent dimensions." He then made clear how transcendent he considered these dimensions by quoting his own paean to liberty from the case that reaffirmed Roe in 1992, a dictum that Justice Scalia called the "sweet-mystery-of-life passage": "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This passage has been properly ridiculed by lower court judges for the past decade because of its melodramatic implications. If carried to its logical conclusion, it seems to read the libertarian harm principle of John Stuart Mill into the Constitution, preventing the state from forbidding individuals from engaging in behavior that the majority considers immoral but that poses no harm to others. But in Lawrence, Kennedy, joined by four of his colleagues, made clear that a majority of the Rehnquist Court does in fact mean to read the "sweet mystery" passage for all that it's worth. He said that states and courts should not attempt to "define the meaning of the [intimate sexual] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." As Scalia correctly observes, "This effectively decrees the end of all morals legislation."
The reason liberal and conservative defenders of judicial restraint have long been skeptical of the Court's increasingly abstract odes to sexual autonomy is that their constitutional roots are so flimsy. The first references to the idea that the Constitution protects private decisions regarding marriage and family life occurred in the 1920s, when the Court struck down nativist state laws prohibiting the teaching of foreign languages. But those cases were better defended in terms of the First Amendment right of free expression and had nothing to do with sexual freedom. In 1967, the Court struck down a Connecticut law forbidding the use of contraceptives; but despite its infamous references to "penumbras, formed by emanations" from the Bill of Rights, it failed to identify a constitutional provision that protected a broad right of personal autonomy; instead it emphasized the special status of the marital bedroom and pointed to the Third and Fourth Amendments, which protect the spatial privacy of the home. In Roe, the right to privacy was unmasked as a right of sexual autonomy, but the Court never explained where the right came from--it simply asserted that the liberty protected by the Constitution was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy," citing the Court's traditional concern with the freedom of marriage and family life. Finally, in reaffirming Roe, the Court abandoned all pretense of protecting traditional relationships of marriage and the family and, with the "sweet-mystery" passage, seemed to suggest that any restrictions on sexual freedom were constitutionally suspicious. And now comes Lawrence to confirm, by judicial fiat, Scalia's wildest fears.
Kennedy's opinion relies heavily on the idea of a growing national consensus against legislating on matters of morality. As evidence, he cites state legislatures decisions to repeal sodomy laws over the course of the last twenty years. But it's not at all clear from that record that such a consensus exists: In 1986, 25 states banned sodomy in some form; and today 13 continue to do so. Between 1986 and today, only 4 sodomy laws were repealed by state legislatures and 12 were struck down by state courts--often under the same expansive privacy reasoning that the Supreme Court failed to defend in Lawrence. It's true that only four states today single out same-sex conduct, as Texas does. But the decision to single out homosexual, but not heterosexual sodomy, wasn't made in a vacuum; it reflects an attempt to satisfy the demands of an overly activist Supreme Court. The reason that the Texas legislature, in 1973, amended its sodomy laws to prohibit homosexual but not heterosexual sodomy was because the Supreme Court said in 1972 that states couldn't discriminate between married and unmarried people in regulating sexual activity.
Obviously, there has been a sea change in public attitudes toward sexual behavior since the 1960s, which is why the right lost the culture wars and only a minority of moral conservatives, such as Justice Scalia, will lament the end of sodomy laws today. As Karlyn Bowman of the American Enterprise Institute notes in a recent study of public attitudes about homosexuality, in 1977 forty-three percent of respondents told Gallup interviewers that homosexual relations between consenting adults should be legal, while sixty percent gave that response in 2003. Nevertheless, the public as a whole has hardly embraced Millian liberalism in all of its dimensions. As Bowman notes, "in 1973, when the National Opinion Research Center at the University of Chicago first asked people about sexual relations between two adults of the same sex, 73 percent described them as 'always wrong' and another 7 percent as 'almost always wrong.' When the organization last asked the question in 2002, 53 percent called them always wrong and 5 percent almost always wrong." Although judicial activism may be justified when the Court acts to bring one or two state outliers into synch with an overwhelming national consensus in public opinion, it turns out that there is no national consensus that states may not legislate on the basis of moral disapproval. It's easy to ridicule Scalia for defending the state's ability to criminalize fornication, masturbation, bestiality, prostitution, nude dancing, and obscenity: Who can be against any of these innocent pleasures in the age of Eminem? But absent an overwhelming national consensus against these laws, Saclia's constitutional question to his colleagues--why are the states all of a sudden prohibited from banning consensual sexual activity on moral grounds?--deserves an answer. Unfortunately, they give none.
The most unsettling implication of the Court's expansive new right of sexual autonomy relates to the question of gay marriage. Justice O'Connor tried to preserve laws limiting marriage to opposite sex couples by announcing tersely that "preserving the traditional institution of marriage" is a legitimate state interest. But as Justice Scalia was quick to observe, "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Since allowing homosexuals to marry has no impact at all on the willingness of heterosexuals to marry, it's hard to think of a reason for courts to avoid extending the Court's new right to "define the meaning" of intimate relations to include a right of all people to marry, regardless of their sex. Of course, the arguments on behalf of a judicially created right of gay marriage--whether located in the right to equality or the right to privacy--are not frivolous. But they are also not constitutionally restrained--not well rooted, that is, in text, history, or tradition. For the Court so glibly to put its finger on the scales of favoring a judicially created right to gay marriage, in a case where this sort of activism was unnecessary, seems cavalier in the extreme. And, as a pragmatic matter, defenders of equal civil rights for gays and lesbians will rue the day that lower courts begin to follow the example of their Canadian counterparts and recognize a right of gay marriage on a national scale. For the political backlash against a judicially created right to gay marriage would be so swift and dramatic--at least in the immediate future--that it would set back the cause of gay and lesbian equality rather than advancing it.
Indeed, the grandiosity of the Lawrence decision reveals how little liberal and conservative justices have learned about the hazards of activism in the 30 years since Roe was decided. There were moments on the Rehnquist Court when it seemed as if the justices had gotten out of the business of reading broad rights of personal autonomy into the Constitution--most notably in the right to die case in 1997, where they unanimously refused to create a broad right of physician-assisted suicide. But in a single, unnecessarily dramatic gesture, those bipartisan murmurings of restraint went out the window. The fact that the Court is likely to get away with its activism--as a political matter, few Americans will march to the barricades on behalf of sodomy laws--can't undo the damage of another self-inflicted wound. For when the next confirmation conflagration comes, the conservative minority that has lost the culture war in the political arena will be able to attack the Supreme Court for having turned them into victims, rather than being forced to acknowledge their failure to convince their fellow citizens of the rightness of their cause. "The Court has taken sides in the culture wars," Scalia charged in a foreshadowing of the conservative attacks to come. Absent Lawrence's muddled reasoning, on the other hand, the truth would have been impossible for conservatives to ignore: Far from taking sides in the culture wars, the Court only ratified a national consensus in favor of sexual autonomy after it was too obvious to be denied.
Next to the hyperbole of Kennedy and Scalia, the most convincing opinions in Lawrence were the most modest. In the same way that O'Connor offered the case for striking down the Texas law in the narrowest possible terms, so Justice Thomas gave us a dissent of eloquent simplicity. "The law before the Court today "is ... uncommonly silly," he said, quoting Justice Stewart's dissent in the contraceptives case. "If I were a member of the Texas Legislature, I would vote to repeal it." Nevertheless, Thomas said he was unable to find in the Constitution a "general right of privacy," or, as the Court called it "the liberty of the person both in its spatial and more transcendent dimensions." The fact that the majority didn't bother to respond to Thomas shows how little the judicial activists on the left and the right have learned from the errors of Roe. Their lack of self discipline will only fan the flames of the confirmation battles to come, whether they occur this week, next year, or in the years to come.
Jeffrey Rosen is the legal affairs editor at TNR.
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