The New Republic

"Is Lawrence worse than Roe?" read an e-mail message sent by Crisis,
the conservative Catholic journal, after the Supreme Court struck
down every sodomy law in the United States two weeks ago. And the
answer, for liberal and conservative defenders of judicial
restraint, should be unequivocal. Yes, in terms of its unnecessary
breadth, 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 as hard to
locate in the text or history of the Constitution as the right of
reproductive autonomy the Court discovered in Roe. By resurrecting
an unprincipled and unconvincing constitutional methodology, the
Court will energize the social conservatives who are foundering in
the culture war, allowing them to cast themselves as defenders of
judicial restraint 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 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 the United States--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 did so in an
evenhanded way.

It's true that evenhanded laws banning sodomy have a greater effect
on gays and lesbians than straight people. But, in cases involving
race and gender discrimination, the Court has held repeatedly that
laws can't be struck down as unconstitutional simply because of
their discriminatory effects; in order to violate the equal
protection clause, they have to have a discriminatory purpose as
well. Without this well-established and necessary limitation on its
power, the Court would be forced to strike down a daunting array of
neutral state policies that have unintentional discriminatory
effects--from SAT and employment tests that inadvertently
discriminate against minorities to increases in bus fares that
inadvertently discriminate against the poor.

But, in his opinion for the Court, Justice Anthony Kennedy took a
far more grandiose approach than O'Connor's emphasis on equality.
He said the case "involves 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 Planned Parenthood v. Casey--the case that
reaffirmed Roe in 1992--a dictum that Justice Antonin 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
for 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. Although there
is no more inspiring defender of liberty than Mill, his harm
principle is hard to reconcile with more than 200 years of U.S.
constitutional history, where states have been traditionally free
to regulate behavior to promote "health, safety, and morals." 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 as broadly as possible. 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 flimsy.
The Court's first references to the idea that the Constitution
protects private decisions regarding marriage and family life took
place in the 1920s, when the Court struck down nativist state laws
prohibiting parents from teaching their children foreign languages.
But those cases were better defended by reference to the First
Amendment right of free expression and had nothing to do with
sexual freedom. In Griswold v. Connecticut in 1965, the Court struck
down a state 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 any constitutional
provision that protects a broad right of personal autonomy. In a
more convincing concurring opinion, Justice John Harlan emphasized
the special status of the marital bedroom. Following Harlan's
example, the Court in Lawrence could have invoked the Fourth
Amendment's special concern with intrusive searches of the home.
The police had a valid warrant to investigate a report of a weapons
disturbance, but the report turned out to be false. As a result,
the Court might have held that enforcing sodomy laws isn't a
serious enough state interest to justify invasive searches of
people's bedrooms. This more modest recognition of the right to
spatial privacy would have prevented states from regulating sodomy,
fornication, or masturbation in the home without prohibiting them
from regulating other behavior of which they disapprove that takes
place outside the home--such as polygamy.

But the right Kennedy announces has nothing to do with spatial
privacy; instead it is unmasked as a sweeping right of sexual
autonomy. The roots of this right were planted not in Griswold but
in a 1972 case in which the Court declared that the right to
privacy must include the right of married or single people to make
intimate decisions about procreation. In Roe, the Court expanded
this right even further but again 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 about the freedom of marriage and family life.
Finally, in reaffirming Roe in 1992, the Court abandoned all
pretense of protecting traditional relationships of marriage and
the family and, with Kennedy's "sweet-mystery" passage, seemed to
suggest that any restrictions on sexual freedom were
constitutionally suspicious. Now comes Lawrence to confirm 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 20 years. But it's not at all clear from
that record that a national consensus exists: In 1986, 25 states
banned sodomy in some form; today, 13 continue to do so. But only
four sodomy laws were repealed by state legislatures since 1986;
eight, meanwhile, were struck down by state courts--often under the
same expansive privacy reasoning that the Supreme Court failed to
defend in Lawrence. In 1965, by contrast, Connecticut was the only
state in the country that still banned the use of contraceptives;
and Justice Harlan said the "utter novelty" of the law was, for
him, conclusive.

Obviously, there has been a sea change in public attitudes toward
sexual behavior since the '60s, which is why the right is losing
the culture war and only a minority of social 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, 43 percent of
respondents told Gallup interviewers in 1977 that homosexual
relations between consenting adults should be legal, while 60
percent gave that response in 2003. Nevertheless, the public as a
whole has not yet embraced Millian liberalism in all 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." That's still a majority. Although judicial
activism may be justified when the Court acts to bring one or two
state outliers into sync with an overwhelming national consensus,
there is today 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. But, absent an overwhelming national consensus against
these laws, Scalia's constitutional question to his colleagues--why
are the states suddenly prohibited from banning consensual sexual
activity on moral grounds?-- deserves an answer. Unfortunately,
they gave none.

The most unsettling implication of the Court's expansive new right
of sexual autonomy relates to 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 obvious impact 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 clearly rooted, that is, in text,
history, or tradition. 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 advance it. The recent momentum behind
a federal constitutional amendment to prohibit gay marriage is only
the first evidence of the political backlash to come as lower
courts begin to invoke Lawrence to recognize gay marriage rights
before the public is willing to accept them. Gay rights advocates
who are celebrating the Lawrence decision today may find themselves
in the same position as the pro- choice advocates who applauded Roe
in 1973, not realizing that it would provoke a conservative
counterreaction that would set them back in a political arena where
they were well on their way to winning people's hearts and minds.

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 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 have
gone out the window. The fact that the Court is likely to get away
with its activism--in the short term, few Americans will march to
the barricades on behalf of sodomy laws--can't undo the damage of
another selfinflicted wound. For, when the next confirmation
conflagration comes, the conservative minority that was losing 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 war," Scalia charged in a foreshadowing of the
conservative attacks to come.

Next to the hyperbole of Kennedy and Scalia, the most convincing
opinions in Lawrence were the most modest. Just as O'Connor made
the case for striking down the Texas law in the narrowest possible
terms, so Justice Clarence Thomas gave us a dissent of eloquent
simplicity. "The law before the Court today 'is ... uncommonly
silly,'" he said, quoting Justice Potter 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 our
judicial confirmation battles in the future, whether they occur
this week, next year, or in the years to come.

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