Eve Tushnet writes that a recent NRO article by Ramesh Ponnuru on the upcoming Supreme Court sodomy-laws case Lawrence v. Texas exhibits “i-dotting, t-crossing care.” Much as I dislike disagreeing with not one but two people as sharp as Eve and Ramesh, color me unimpressed. The piece struck me instead as sloppy, not so much in its contents as in what it rather conspicuously omits. The sloppiness that dare not speak its name, one might say…
While Ramesh gracefully concedes that libertarians are correct to oppose sodomy laws as a matter of policy, he writes that we—as represented in this instance by the Institute for Justice—are wrong on the law. He summarizes the libertarian case as follows:
The IJ libertarians say that the Supreme Court should strike down the Texas statute even if it does not violate any particular provision of the Constitution. The regulation of private morality, they claim, exceeds the legitimate police powers of state government.
I was initially simply flabbergasted. I couldn’t figure out what Ramesh meant, unless he was just referring to the fact that, as yet, we lack a 28th Amendment specifically guaranteeing the right to bugger whomever you please. If that’s what he intends, then sadly, I must grant the point. Fortunately, we have a number of other amendments, including lucky number 14, with its Equal Protection, Due Process, and Privileges and Immunities clauses. Why were the arguments grounded in those “particular provisions” ignored?
But I hunted down the Institute for Justice amicus curiae brief and found, somewhat to my surprise, that it did argue on more or less the grounds he identifies. And if that were the only thing anyone in my wacky little movement had said about Lawrence v. Texas, the article would have at least framed fairly the traditionalist/libertarian debate on the case.
Except it isn’t. In fact, I’m going to go out on a limb and assume (really; I have no direct knowledge about this) that the main reason IJ’s brief restricted itself to those relatively narrow grounds is that Cato had simultaneously released its own amicus brief dealing with all the other arguments.
Now, as a matter of constitutional jurisprudence, maybe Ramesh’s critique is right. As the Court would say, I need not reach that question in this inquiry, because we all know damn well that the issues in the IJ brief aren’t going to be the crux of the Court’s decision. Given that, it seems just a touch disingenuous to take advantage of a little division of labor—”you handle those arguments; we’ll make these”—to rebut one set of arguments, ignore another set likely to actually show up in the ratio, and then present this as an analysis of the dispute between “traditionalists and libertarians.”
So, let’s look at those other arguments then, shall we? You can all read the brief for yourselves, of course, but a quick run through won’t hurt anyone. First, there are actually at least two equal protection claims in play here. Unlike the law upheld (wrongly, I think, but hold that thought) in Bowers v. Hardwick, the Texas statute bans only same sex conduct. In fact, as some have observed, bestiality is not illegal under Texas law either. So I can have anal sex with my girlfriend, I can even bugger ol’ Fido, but if they catch me trying to shag another guy the “wrong” way, well, then it’s off to the clink. Where, at about 145 lbs., I suspect I’d soon find myself on the receiving end of the proscribed conduct.
So first, there’s the Equal Protection claim with respect to sexual orientation. In Romer v. Evans, the court struck a Colorado law prohibiting the passage of any legislation guaranteeing antidiscrimination protection to homosexuals. Now, as a totally independent matter, I’m actually not in favor of such laws. If someone wants to be a nasty little bigot and not hire a homosexual or rent to gay couples, well, for better or worse, there’s no IQ-test built into the right to free association. Still, that’s separate from the question of whether a law that singles out homosexuals as a class to bear a certain burden or be denied certain benefits by the state can pass Fourteenth Amendment muster. The Court ruled, appropriately, that it cannot. What the Court said of the Colorado law seems to hold equally for the Texas statute: it is “inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”
The second Equal Protection claim is with respect to gender—and in fact, most laws that discriminate against homosexuals arguably have this dual character. If the same sexual behavior that’s perfectly legal with Jill is verboten when I do it with Jack, it sure looks like there’s a case for unequal treatment of gender. That gets at least intermediate scrutiny, and possibly strict scrutiny, depending on how one feels about the next argument, from the right to privacy.
Unlike the Equal Protection arguments, which rely on the Texas law’s peculiar (I almost wrote “queer”) asymmetry in the treatment of straight and gay sodomy, the privacy argument would require the Court to overrule Bowers. Which, since Bowers is a freakishly ugly decision, sounds good to me. Now, the right to privacy is a notoriously dodgy one, basically taken to be implicit in the combination of several Amendments taken together (or their “penumbras and emenations” in the famous phrase), but most centrally the 14th Amendment’s Due Process Clause and the 9th Amendment. (We could add Privileges and Immunities to the mix, but that does stray into more contentious territory.) Case law is less than transparent here, but it’s hard to look at precedent and not see consensual sexual conduct, even when lots of people find it icky, as falling under the aegis of the privacy right as carved out by the Court.
The first privacy case, Griswold v. Connecticut, protected the right of married couples to use contraception, later extended to unmarried couples. Now, it is very difficult to think of an argument that would permit states to trump privacy in the bed of a consenting gay couple that could not also be extended to cover a straight couple using a condom. Public morality? But the public might disapprove of contraception no less than gay sex. If constitutional deference to that essential, intimate, personal sphere guarantees me the right to slip a bit of latex over my penis, it seems that a fortiori it should prevent the state from prescribing where I may proceed to put it, provided it’s been voluntarily invited there by another adult.