A couple of e-mail correspondents have asked me to clarify my views on the free-association argument for a constitutional right to sodomy, which I mentioned here yesterday in connection with an op-ed by Clint Bolick. I suppose that it’s worth doing, especially as Andrew Sullivan has labeled Bolick’s as “the principled conservative argument.” (This looks like carelessness on Sullivan’s part: He can’t really mean that all principled conservatives have to judge this constitutional claim sound.) In short, by saying that Bolick’s latest argument for constitutional protection was stronger than his previous arguments, I didn’t mean to suggest that it was actually strong.
Bolick argues that two men having sex with each other are involved in a kind of “expressive association” that should be protected from state interference in the same way that the right of the Boy Scouts to determine their own rules should be protected. The gay men should be protected from the state’s moral judgment of homosexuality, just as the Scouts should be protected from the state’s moral judgment of discrimination against gays. But a right to free association need not protect all behaviors in which the people associating engage. If the Scouts had a rule that everyone at their gatherings had to smoke dope, the Court would not have to protect them from prosecution in order to stay consistent. Freedom of association is best understood as a claim to be able to include or exclude whoever you want from an organization. (Not that the Supreme Court has held in favor of that freedom expressed that generally, or that it should: I am inclined to think that the Scouts should have lost their case.)
Also, isn’t a brothel equally an association? I suspect that Bolick would not mind much if the Court were to rule that laws against prostitution had to go, but if what he’s going for is a broad principle of consent as the only permissible legal standard for the legal regulation of sex—and possibly of other things as well—he should level with his fellow citizens.
As I’ve said before, I think the Texas legislature should repeal the law against same-sex sodomy when it next convenes. But the Court ought not to do the legislature’s job.