One Person's Opinion

A compendium of random thoughts regarding politics, society, feminism, sex, law, and anything else on my mind. POST YOUR COMMENTS BY CLICKING ON THE TIME INDICATOR BELOW THE POST YOU WISH TO COMMENT ON. RSS FEED AVAILABLE AT

Andrew Sullivan
Attorney Shopping Links
Bag and Baggage
Ernie the Attorney
Eve Tushnet
Gail Davis
How Appealing
Lehrer NewsHour
National Law Journal
National Review
New Republic
Talking Points Memo
Virginia Postrel
Volokh Conspiracy
War Liberal
This page is powered by Blogger. Isn't yours?
Wednesday, July 02, 2003
Sodomy laws were the front line of that war. Why? Because the entire purpose of such laws was literally, to scare homosexuals straight. They were rarely enforced anymore. Many were amended to delete references to heterosexual sodomy. But they were an expression of prejudice and animus against gays and lesbians, and on that level, they had to stay on the books.

Of course, conservatives and their lawyers did not characterize the purpose of the laws in these terms. Rather, they said that these laws expressed permissible majoritarian disapproval against gays. However, that was entirely and obviously a cover. For one doesn't normally express moral disapproval by threatening to jail sinners. Failing to honor one's father and mother, having other gods before the God of the Bible, and coveting one's neighbor's wife or things are all specifically
outlawed in the Ten Commandments (unlike homosexuality, which is prohibited in Leviticus, a chapter of the Bible that contains all sorts of dietary rules that modern evangelical Christians almost all disregard). Yet none of them are punishable by jail time, nor are there any significant numbers of Christian conservatives calling for such punishment. So, if the purpose of these laws
wasn't disapproval of the sin, it had to be animus towards the sinner.

Further, the conservative movement was very clever about how they kept sodomy statutes in place. First, they strongly advocated a narrow form of constitutional construction that was intended to prevent what happened last week in Lawrence, i.e., there are no unenumerated rights in the Constitution, equal protection of the laws does not cover gays, moral
disapproval of a particular group is a sufficient state interest to uphold a law, and anyone who says otherwise is a dangerous liberal activist. But it was conservatives, such as Anthony Kennedy and Sandra Day O'Connor, who provided the crucial rejection of those arguments. Indeed, there is no way that either of them is going to vote for gay marriage as a constitutional right. This is no slippery slope. The fact is, while one can argue about the constitutional interpretation in Lawrence, this is not going to lead to wholesale
striking down of popular laws on the basis of unenumerated rights. In fact, in the past 50 years, I can think of exactly three cases that struck down a popular law on that basis, and all of them are in the area of abortion. Despite 30 years of constitutionalized abortion law, the doctrine of unenumerated rights has not extended to any areas where there has not been a strong popular
consensus. The notion of unelected judges running amok simply has not occurred and will not occur given the composition of the current Court. (The best example of this was Washington v. Glucksberg, where the Court refused to recognized an unenumerated "right to die" that overrode state laws prohibiting assisted suicide.)

The second conservative strategy on sodomy laws was to change the subject, or indicate that oh yes, if they were in the legislature, they would vote against such silly laws, but it should be up to the citizens of _______ to determine if they wanted such a law. I realize that in a sense this is a principled position-- it is Justice Thomas' position in his dissenting opinion (unlike the prudish
Justice Scalia, who clearly longs for the good old days when his theological views were reflected in state laws, Thomas clearly does not think the government has any business telling gays and lesbians that they can't have sex). But it is also a big cop-out. Sodomy statutes are not simply bad laws; they are fundamentally unjust ones. They either criminalize the private conduct of most Americans, or they criminalize the conduct of a disfavored class. Either way, they are an outrage.
And the conservative rhetoric did not befit the outrage. No, quite the contrary, conservatives were basically saying that on the margins, they didn't think these laws were very good, but they weren't going to do anything to persuade states not to enact them or keep them on the books.

Comments: Post a Comment