“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” This is Justice Anthony Kennedy, expounding on the living, indeed mutating, Constitution in the Supreme Court’s decision in Lawrence v. Texas.
What he appears to mean is that the ratifiers of the Fifth and Fourteenth Amendments were just too bigoted to add a constitutional provision guaranteeing a right to sexual freedom, but were sufficiently farsighted to grant judges the power to create one in the future. Although they were also crafty enough not to put anything in the Constitution to that effect. What Kennedy gets right is that the Constitution does indeed leave room for society to change its mind about what constitutes justice. The chief mechanism for this change is the ability of democratic legislatures to alter their policies. Most states have dropped their laws against sodomy, as they should have; but the Court somehow construes this process of change as something in which it needs to intervene rather than as evidence that it need not.
In general, and with the qualification noted below, I agree with the analyses offered by Justices Scalia and Thomas. Readers looking for detailed analyses ought to read their opinions, which are available at the bottom of this page. My agreement includes Justice Scalia’s analysis that the Supreme Court has eliminated most of the legal ground on which opponents of judicially imposed same-sex marriage could stand. It is depressing to note that four of the six justices who decided to throw out Texas’s law without clear constitutional warrant were appointed by Republican presidents.
My major criticism of the Justice Scalia’s opinion is its insistence that the Texas law, prohibiting sodomy among persons of the same sex but not among persons of the opposite sex, has a “rational basis.” It doesn’t. This point is the best one that Andrew Sullivan makes in his own take on the decision: “Allowing sodomy for 97 percent of the population, while barring it for 3 percent[,] cannot possibly be defended as a law designed to prevent or deter the immorality of sodomy.” I can see the reasons why someone might want to ban sodomy altogether, although I would not agree with such a ban. But I can’t see the justification for singling out the same-sex variety.
In their brief to the Court for the Family Research Council and Focus on the Family, Gerard Bradley and Robert P. George (a friend of mine) struggle mightily to come up with an explanation of how a rational Texas legislator could have devised a law making this distinction. Their argument is ingenious, but it does not quite persuade. Scalia, meanwhile, seems to assume that it is rational for a legislature to take legislative actions to foster the moral climate that a majority of the state’s citizens regard as desirable — without doing any inquiry into the rationality of the moral views at issue. But it should be obvious that it cannot be rational to impose an irrational moral code.
I share Justice Scalia’s reluctance to have the Court undertake that inquiry into moral philosophy. My reluctance does not stem from any doubt that reason is capable of arriving at a conclusion about the justifiability of particular moral views, but rather from the conviction that the inquiry is not the Court’s job. The “rational basis” test itself should be rejected as an extraconstitutional judicial invention. The irrationality of a distinction does not imply its unconstitutionality; states shouldn’t have to persuade the Court that their laws are “rationally” related to serving “legitimate” purposes. A lot of modern jurisprudence is based on that test, so rejecting it would be an uncomfortable stance for any justice; but accepting the test while trying to limit the damage it does requires intellectual contortions.
Scalia himself alludes to these difficulties when he suggests that the Court will now be unable to find a rational basis for defining marriage as heterosexual. “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion,” he writes. “The people may feel that their disapprobation of homosexuality is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly.”
It’s not quite right to suggest that opposition to sodomy laws logically entails support for same-sex marriage; but Scalia is right to suggest that a law need not have a perfectly “rational basis” to be worth supporting by a legislator or voter. I am not at all sure that it is rational, in the fullest sense of the word, to ban partial-birth abortion but not other methods of feticide; but I see no reason why that should prevent someone from supporting that limited ban while working toward a more comprehensive one. (For reasons I won’t go into here — I’ve already gone on longer than I had originally intended — I don’t think an analogous line of reasoning could be used to justify the Texas law.)
I agree with Justice Thomas that the Texas law was “uncommonly silly.” We should rejoice in the fact of its demise, but not the manner.