[Torie]

Well, Frum doesn't get it quite right. What Romer was about was the provision preventing pro gay laws to be passed in the future. It would have been OK just to strip out existing pro gay laws. Instead, there was a process impediment to the passage of future laws, and process impediments which focus on taking one side or the other on social issues are indeed suspect (although I think Romer used rational basis which was squirrely, although I am not sure), and should be. Granted, a process impediment taking the gay side would probably have been OK, so it is true that the die are loaded.

And Lawrence did not make gays a suspect class, and did not use equal protection grounds, as you know. What Kennedy did was much more fuzzy, and we shall see whether how far fuzzy wuzzie is expanded in the future. It certainly is susceptible to expansion, but it is not automatic ala the suspect class regime.

I guess Frum isn't a lawyer.

[aristeides]

My recollection is that Romer too had some remarkably fuzzy language. Frum furnishes the most plausible explanation I have yet seen of why Lawrence could have led to the result in Limon. The court in these decisions has been very careful not to talk about suspect classes and fundamental rights, and it has -- very unconvincingly -- pretended it was using rational-basis review. But it sure looks to me as though it has in effect created both a protected (I'm not using "suspect" just because it is a technical term) class and a de facto fundamental right. And that that class includes homosexual molesters of 14-year-olds, and that fundamental right somehow covers with a certain amount of protection even the homosexual molestation of 14-year-olds.