Anti-Climacus

LAWRENCE V TEXAS: A fine example of how you can reach the right conclusion and still have it be wrong. Of course, sodomy laws are stupid, and there's no real point in having them. Perhaps it is the warping influence of all those polisci classes, but I was under the impression that people elected these guys called legislators to create and change laws. I guess we do that all through SCOTUS now. Anyway, if you want to make the argument that the Left in America is explictly anti-democratic, you'd need look no further than the conversation I had with a friend of mine who told me that the process of passing laws took too long, which is why we need recourse to the courts. I assume that the silliness of that point is obvious.

Anyway, the Court chose the worst possible basis to affirm the obvious: they asserted that there exists, as part of the Due Process clause of the 14th Amendment, a right to privacy that includes the right to have consensual homosexual sex. I'm agnostic, so to speak, on the question of whether privacy rights exist in the 14th Amendment ("...nor shall any State deprive any person of life, liberty, or property, without due process of law..."). If you see privacy as being part of that liberty, it's there, if you don't, then it's not. What bothers me is that there's nothing in the holding of the decision that properly distinguishes the case at hand. No one (Rick Santorum aside) has a problem with the argument that the state has no right to negatively sanction certain types of conduct between properly consenting adults. But this isn't what the Court holds: they categorically reject using ethical standards as a basis for law, even majoritarian ethical standards: "the issue is whether the majority may use the power of the state to enforce these views on the whole society through the operation of criminal law. 'Our obligation is to define the liberty of all, not to mandate our own moral code.' " I defy anyone to show that you couldn't use this ruling as a cornerstone for an argument that incest, pedophelia or bigamy shouldn't be illegal.

But, the best point in the entire decision goes to Scalia, of all people. He rightly notes that the landmark abortion-rights decision Planned Parenthood v. Casey held that the principle of stare decisis was so strong that it demanded that Roe be upheld, even if a majority of the court felt that it was decided wrongly on the law--the widespread assumption that abortion was legal is reason enough to keep it in place, whatever the facts warrant--which, to Scalia's credit, he rightly pointed out in his dissent was a judgment the legislature was supposed to make. But here, the Court goes to the same lengths to show that stare decisis is no reason to uphold a past judgment if the facts don't support it. He gets great milage out of using this as a stick to beat the majority, and (oddly for him, considering his general gruffness) it's something of a delight to read, if you're familiar with the wonk-iness behind Casey.

But I still think it was a stupid law.