One Person's Opinion

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Thursday, March 27, 2003
I have engaged in a fair amount of debate on this over at Slate, but basically, I think there are three possible theories as to why sodomy laws may plausibly be held unconstitutional: (1) that the privacy of the bedroom is an unenumerated right that is protected under the Constitution, (2) that sodomy laws are expressions of pure animus against homosexuals (or against so-called "deviants" more generally) and thus lack a rational basis, and (3) that, at least as to sodomy laws that target homosexual relations exclusively, such laws discriminate against people because of their gender (by allowing females, but not males, to have sex with a man, and vice-versa) and are not justified by any important state interests.

The crux of the debate over at Slate is that I don't think (1) is very persuasive. A finding of an unenumerated right in the Constitution is disfavored, for good reason; there is a grave danger of judicial activism when judges can simply construct constitutional rights where no text guides them. (I do not believe, as some people do, that there are no such things as unenumerated rights-- the Ninth Amendment makes pretty clear that such rights exist. People who claim that there are no such rights usually base their position on an obligation to follow the text of the Constitution, but they say little about the text of the Ninth Amendment.) The usual formulation is that such rights have to be "so deeply rooted in our traditions to be considered fundamental". The right to have sex with someone of the same gender is not deeply rooted in our traditions. (Indeed, that's exactly the point-- times have changed.)

But I do think that (2) and (3) are extremely persuasive. First, there is no doubt that the reason these laws exist on the books is that people want to condemn homosexuals. (Indeed, they aren't usually enforced precisely because their purpose is moral condemnation, not law enforcement.) Some scholars and judges, including most famously Antonin Scalia, think that such moral judgments are sufficient to provide a rational basis for a statute. But this proves too much-- any behavior can be condemned as immoral, and thus all statutes would pass the rational basis test if this is the law. Further, I don't think there is nearly the separation that Justice Scalia does between moral condemnation and animus, at least as far as legislation is concerned. While conceptually I think it is possible on a personal level to "love the sinner and hate the sin", it is not credible to say that a person loves the sinner if he or she wants to throw the sinner in prison (or to at least threaten to do so). Someone who wants to do that must at some level dislike homosexuals. This theory was used to strike down a Colorado statute nullifying local gay rights ordinances in Romer v. Evans, and I expect that it will be used to strike down the sodomy law in this case.

There is another, more daring theory, that I wish the Court would use to strike down the statute. Most anti-gay statutes are really a form of gender discrimination, and gender discrimination, even where it has a rational basis, is considered unconstitutional unless the statute is substantially necessary to serve important state interests. How are anti-gay statutes gender discrimination? Simple-- take the Texas sodomy law. Under that law, females are allowed to have any kind of sex with a male, but males are not allowed to have sex with the same male. Thus, the statute discriminates against men because of their gender. There is precedent for this theory-- it was used to strike down anti-miscengenation statutes in Loving v. Virginia. (If you were black, you weren't allowed to marry a white spouse that a white person was allowed to marry.) Further, it makes perfect sense. Indeed, if it were anything other than sexual activity that we were talking about, there is no doubt that this principle would be applied. For instance, imagine a statute that required that any contract, to be enforceable, would have to be made between people of the opposite sex. Or a statute that required states to educte males and females in separate classrooms. Those statutes would be struck down on the basis that they constitute gender discrimination.

The importance of this theory is that it would make classifications based on sexual orientation suspect under the law, so that a state would need an "exceedingly persuasive justification", and not just a rational basis, to discriminate against homosexuals. It would bring gays and lesbians similar protections to those enjoyed by racial and religious minorities, aliens, and women. And Texas politicians would have to find some other way to score cheap political points than demonizing gays and lesbians.

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