Are State Sodomy Prohibitions Unconstitutional?

Decided May 27

Lawrence v. Texas No. 02-0102

In Lawrence v. Texas, the Court reviewed a Texas law that criminalized homosexual (but not heterosexual) sodomy. The inconveniences of democratic, decentralized decision making were pitted against the charm of judicial fiat. Judicial fiat won. 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, has now been discarded. Writing for a 6-3 court, Justice Kennedy discovered a right (kind of) to personal bonding and dignity maintaining: there is a fundamental "liberty of the person both in its spatial and more transcendent dimensions."

The decision--not to mention that prose--is unfortunate. 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, was 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 correctly predicted an anti-Bowers vote from Justices Kennedy and O’Connor. It is not far-fetched to surmise that the cert granters had their sights on future judicial nomination fights, where the homosexual rights issue will continue to be be very awkward for the administration.            

opinion        

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