If only Saletan tried to think about the division of powers, he would find his answer. He wants to find a judicial answer to the problem of the existence of laws to which he objects (sodomy laws), when the Constitutional answer is that the answer is to have them removed through the political process, through legislation, if the public has decided that the prudent dictums of learned knowledge over time has shown that the laws should be changed.
That is where the remedy is found, if there is an ill here. Not in the courts.
The doctrine of States Rights and the system of Federalism that we have works wonderfully to allow local communities to develop and enforce their own customs and laws; and to an extent, I like it. Across these 50 states there are thousands of different ways to handle similar things, from running school boards to enforcing zoning laws to setting speed limits. But I wonder about the suitability of this system when the issue at hand is something foundational to that society, such as life and death (abortion and euthanasia etc) and the family (marriage, adoption and divorce laws). Just as in the case of Slavery in the 1840's and 1850's, there is something about those issues that simply do not allow a situation where some states will allow abortion and some not; some states allow the euthanizing of the elderly and some not; some states allow homosex and some not; some states allow incest and some not. If you have enough locally diverse customs on these fundamental cultural issues across the land, what you may end up with are the Diverse States of American instead of the United States of America. I worry about that. But I also worry about the power of the central government to compel everyone in the land to observe the same law. At that point, if you are in the opposition, where do you go?