Kennedy Curse

by Jeffrey Rosen | July 21, 2003

"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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