WORSE THAN ROE

Sex Appeal (Jeffrey Rosen, 06.30.03, New Republic)

"Is Lawrence worse than Roe?" read an e-mail message sent by Crisis, the conservative Catholic journal, after the Supreme Court last week struck down every sodomy law in America. And the answer, for liberal and conservative defenders of judicial restraint, should be unequivocal. Yes, as a constitutional matter, Lawrence is worse than Roe. The Court could have struck down Texas's sodomy law on the narrow grounds that it violated the equal protection of the laws by forbidding homosexual but not heterosexual sodomy. But instead 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. By resurrecting an unprincipled and unconvincing constitutional methodology, the Court will energize the conservatives who have lost the culture wars, and will allow them to cast themselves as judicial martyrs rather than political losers. [...]

The most unsettling implication of the Court's expansive new right of sexual autonomy relates to the question of gay marriage. Justice O'Connor tried to preserve laws limiting marriage to opposite sex couples by announcing tersely that "preserving the traditional institution of marriage" is a legitimate state interest. But as Justice Scalia was quick to observe, "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Since allowing homosexuals to marry has no impact at all on the willingness of heterosexuals to marry, it's hard to think of a reason for courts to avoid extending the Court's new right to "define the meaning" of intimate relations to include a right of all people to marry, regardless of their sex. Of course, the arguments on behalf of a judicially created right of gay marriage--whether located in the right to equality or the right to privacy--are not frivolous. But they are also not constitutionally restrained--not well rooted, that is, in text, history, or tradition. For the Court so glibly to put its finger on the scales of favoring a judicially created right to gay marriage, in a case where this sort of activism was unnecessary, seems cavalier in the extreme. And, as a pragmatic matter, defenders of equal civil rights for gays and lesbians will rue the day that lower courts begin to follow the example of their Canadian counterparts and recognize a right of gay marriage on a national scale. For the political backlash against a judicially created right to gay marriage would be so swift and dramatic--at least in the immediate future--that it would set back the cause of gay and lesbian equality rather than advancing it.

Indeed, the grandiosity of the Lawrence decision reveals how little liberal and conservative justices have learned about the hazards of activism in the 30 years since Roe was decided. There were moments on the Rehnquist Court when it seemed as if the justices had gotten out of the business of reading broad rights of personal autonomy into the Constitution--most notably in the right to die case in 1997, where they unanimously refused to create a broad right of physician-assisted suicide. But in a single, unnecessarily dramatic gesture, those bipartisan murmurings of restraint went out the window. The fact that the Court is likely to get away with its activism--as a political matter, few Americans will march to the barricades on behalf of sodomy laws--can't undo the damage of another self-inflicted wound. For when the next confirmation conflagration comes, the conservative minority that has lost the culture war in the political arena will be able to attack the Supreme Court for having turned them into victims, rather than being forced to acknowledge their failure to convince their fellow citizens of the rightness of their cause. "The Court has taken sides in the culture wars," Scalia charged in a foreshadowing of the conservative attacks to come. Absent Lawrence's muddled reasoning, on the other hand, the truth would have been impossible for conservatives to ignore: Far from taking sides in the culture wars, the Court only ratified a national consensus in favor of sexual autonomy after it was too obvious to be denied.

If conservatives lost the gay rights battle of the culture war then why did Congress overwhelmingly pass and Bill Clinton sign the Defense of Marriage Act? Posted by Orrin Judd at July 3, 2003 11:55 PM