Should states be permitted to criminalize homosexual sodomy but not heterosexual sodomy? Of course not. Singling out a class of persons is discriminatory and violates the constitutional right to equal protection under the law.
In overturning a Texas law (Lawrence v. Texas) that banned sodomy for homosexuals but not for heterosexuals, the Supreme Court did the right thing. Unfortunately, the broad nature of the 6-3 majority opinion raises as many questions as it answers. Instead of ruling narrowly on equal protection grounds, the majority found that the Texas law not only discriminated against a group but violated the plaintiffs’ basic constitutional right to liberty. The liberty in question seems to be the right to personal and sexual autonomy. In so doing, the Court overturned its controversial 1986 Bowers v. Hardwick decision, which rejected the claim that the Constitution protected a “fundamental right [of] homosexuals to engage in sodomy.”
Both those who embrace the Lawrence decision as a landmark victory for gay rights and those who object to it as the baldest sort of judicial activism think the Court’s reasoning will logically lend itself to a constitutional defense of same-sex marriage. It could equally cast doubt on the legitimacy of laws banning such things as prostitution. In overturning Bowers, Justice Antonin Scalia wrote in a stinging dissent, the Court has embraced a right to personal autonomy that “effectively decrees the end of all morals legislation.” Perhaps.
Increasingly, Americans feel that sexual relations between consenting adults should not be the concern of the law. As Scalia pointed out, however, changing such laws in a democracy ideally is not the job of the judiciary but the legislature. Unfortunately, in an understandable effort to protect the dignity of gay people, the Court majority may have made things worse. Lawrence v. Texas has much of the feel of Roe v. Wade. As Jeffrey Rosen of the New Republic wrote: “The Court embraced and extended a sweeping and amorphous right to sexual liberty that is even harder to locate in the text or history of the Constitution than the right of reproductive autonomy that the Court discovered in Roe.”
Rosen warns that as a result the culture wars surrounding homosexuality are certain to become fiercer and less amenable to resolution. As Roe should have taught the justices, in moral issues that deeply divide the nation it is better to allow compromise to emerge through democratic debate and legislative procedure than to issue judicial fiats.
