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Sexual Rights
Traditionalists v. libertarians at the Supreme Court.


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Ramesh Ponnuru

In March, the Supreme Court will hear arguments regarding a Texas law that prohibits (and imposes fines for) “homosexual conduct.” The last time the Court heard such a case, in 1986, it ruled such laws to be constitutional. The fact that the Court decided to hear the case suggests that it may be ready to overturn that precedent and find that the Constitution protects the right to same-sex sodomy.

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As one would expect, libertarians and traditionalists are having different reactions to the case. The Institute for Justice, representing the former, has filed a friend-of-the-court brief urging the invalidation of the statute. The Family Research Council and Focus on the Family have filed a brief on the other side. (The latter brief was written by Notre Dame law professor Gerard V. Bradley and Princeton politics professor Robert P. George, which I mention because George was a professor and is a friend of mine.)

My own view is that the libertarians are right on the policy question and the traditionalists are right on the legal one. To tackle policy first: To support the criminalization of same-sex sodomy you would have to believe 1) that it is immoral, 2) that laws may properly discourage acts that cause moral harm even if they directly work no other harms, 3) that there are no prudential considerations that militate so strongly against criminalization as to be dispositive. (Two examples of such considerations: A law that is rarely enforced may breed disrespect for law, and strict enforcement of a law may be impractical or generate harms of its own.) I don’t think that this case can be made, at least in modern circumstances; if I were a state legislator in Texas, I would probably vote to repeal the law.1

It is not, however, always the Supreme Court’s job to correct unwise state legislators. The IJ libertarians say that the Supreme Court should strike down the Texas statute even if it does not violate any particular provision of the Constitution. The regulation of private morality, they claim, exceeds the legitimate police powers of state government.

All of the brief’s evidence for this last proposition is off point. The brief establishes that the Founders regarded government with suspicion, that a great many intelligent and influential people have followed John Stuart Mill in holding the governmental proscription of private immorality to be wrong, and that “well-known conservative scholar John Finnis” is one of these people. It does not establish that the Founders’ suspicion of government led (or ought to lead) to a presumption that state laws should be struck down by federal courts. It does not establish that Mill’s liberalism is constitutionally mandatory. It does not establish that Finnis thinks that laws prohibiting private immorality are unconstitutional; in fact he does not. Nor does IJ deal with the historical practice of the states. They long regulated private moral conduct without anyone ever suggesting this was unconstitutional — consider, for example, the statutes prohibiting fornication.

Even modern constitutional law (as distinguished from the actual Constitution) allows such morals laws. The social-conservative brief notes that the Court’s right-to-contraception and abortion decisions do not question state governments’ power to discourage and even prohibit immoral sexual conduct. Even Eisenstadt v. Baird (1972), which seems on its face to be the strongest precedent that opponents of the statute could cite, expressly declares that non-marital sexual acts are “evils” that states have a “full measure of discretion in fashioning means to prevent.”

If all private morals laws are to be held unconstitutional, as IJ wants, it is hard to see how laws against prostitution or, even more, incest could be maintained. IJ tries to distinguish these issues, implicitly suggesting that the former is “public” because it is “commercial” and explicitly claiming that the latter can never truly be free of coercion, even if among adults. Let’s assume those barriers could actually hold. Even so, everyone knows that the real reason for both prohibitions is precisely a moral judgment of the sort that is, on IJ’s account, not supposed to be the basis of law.

For IJ, it’s the logical implications of the opposite judgment that are alarming. If the power of the federal courts to strike down state laws were confined to instances where those laws contravene “tradition or express constitutional provision,” it claims, states could outlaw “cooking unhealthy meals” or “staying up too late.” (Or worse: The brief also suggests, in a passage saved from offensiveness only by its opacity, that morals laws led to the killings of Socrates and of Jesus Christ.) The idea that a state could ban staying up too late without the federal courts’ being able to do anything about it does not strike me as a disaster or even a scandal. The Constitution does not require, or even authorize, the Supreme Court to nullify every foolish law on the books somewhere.

1I said that I would “probably” vote to repeal the Texas statute were I a state legislator. The qualification: I might vote to keep the law if I were persuaded that its repeal would substantially increase the likelihood that the state would have same-sex marriage foisted on it undemocratically. If same-sex marriage is legalized in one state, there will surely be litigation to force other states to grant full faith and credit to that state’s same-sex marriages. One legal obstacle to that maneuver would be for the state to demonstrate that it discouraged homosexual conduct as a public-policy matter. Still, this seems like a drastic solution to a problem of judicial excess.



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