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Too bad this country no longer has the will to prevent outright menaces to the public health by shutting down bathhouses and prosecuting people that conspire to spread fatal disease to others. |
Federalism Project: Supreme Court
Are State Sodomy Prohibitions Unconstitutional?
Lawrence v. Texas No. 02-0102
In Lawrence v. Texas, the Court will review a Texas law that criminalizes homosexual (but not heterosexual) sodomy. The inconveniences of democratic, decentralized decision making will be pitted against the charm of judicial fiat. Judicial fiat will win. For those who don't remember Bowers v. Hardwick (1986), it's just as well; the decision, and its cautionary approach to finding new constitutional rights, is about to be discarded.
That is too bad. The country has enjoyed a rough consensus on sodomy statutes. Most states don't have them. A few-increasingly few-still do but don't enforce them. (Lawrence, like Bowers, is a trumped-up test case.) That legislative-driven outcome is both a bit hypocritical and dissatisfying to fanatics on both sides. But the formula has allowed states to reflect their citizens' varied moral sentiments. It has allowed the liberalizers to make progress. Above all, it has spared us a national, first-principles debate about, of all things, sodomy.
What possessed the Court to yank up this made-up case from a Texas criminal court? Likely answer: the four liberal Justices, who think they can pick up a fifth or sixth anti-Bowers vote from Justice Kennedy or O'Connor. Nor is it far-fetched to surmise that the cert granters in this case had their eyes on the prospect of a judicial nomination fight, where the homosexual rights issue will be very awkward for the administration and its prospective nominee.
AAAAAH! Don't tell the liberals that, whatever you do. They'll loose their faith in him!