I agree with Safire. The language of Lawrence digs the trenches for the assault on marriage as certainly as the Anschluss augured WWII. DMA is now the marial Maginot line, and will not withstand Lawrence.
I agree with Safire. The language of Lawrence digs the trenches for the assault on marriage as certainly as the Anschluss augured WWII. DMA is now the marial Maginot line, and will not withstand Lawrence.
The most unsettling implication of the Court's expansive new right of sexual autonomy relates to the question of gay marriage. Justice O'Connor tried to preserve laws limiting marriage to opposite sex couples by announcing tersely that "preserving the traditional institution of marriage" is a legitimate state interest. But as Justice Scalia was quick to observe, "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Since allowing homosexuals to marry has no impact at all on the willingness of heterosexuals to marry, it's hard to think of a reason for courts to avoid extending the Court's new right to "define the meaning" of intimate relations to include a right of all people to marry, regardless of their sex. Of course, the arguments on behalf of a judicially created right of gay marriage--whether located in the right to equality or the right to privacy--are not frivolous. But they are also not constitutionally restrained--not well rooted, that is, in text, history, or tradition. For the Court so glibly to put its finger on the scales of favoring a judicially created right to gay marriage, in a case where this sort of activism was unnecessary, seems cavalier in the extreme. And, as a pragmatic matter, defenders of equal civil rights for gays and lesbians will rue the day that lower courts begin to follow the example of their Canadian counterparts and recognize a right of gay marriage on a national scale. For the political backlash against a judicially created right to gay marriage would be so swift and dramatic--at least in the immediate future--that it would set back the cause of gay and lesbian equality rather than advancing it.