Lawrence v. Texas

The Supreme Court’s Lawrence v. Texas decision seems to have raised myriad political issues. Obviously the law was faulty. To my mind the government has no role in my bedroom (nor does anyone else...). However (as The New Republic Online describes here) there are some major problems both philosophically and politically from the decision.

Having read Kennedy's opinion, O'Connor's concurrence and Scalia's dissent (plus the two paragraphs Thomas threw in seemingly to more clearly [than Scalia] demonstrate the difference between a bad law and an unconstitutional law) I tend to agree with <gulp> Scalia. While his writing is a bit muddled, and has some potentially offensive passages, his legal reasoning is sound.

As a democracy, the laws — even those dictating morality — are decided by the people. To have overturned the Texas law because it prohibited only homosexual sodomy would have been reasonable. But a democracy values the ability of the populace to establish a set of morality which its citizens must observe. There are behaviors (prostitution, drug use, incest) that the majority of Americans believe to be detrimental to the social fabric of our nation. Perhaps someday opinions will change. Expanding individual rights to supercede limitations deemed necessary by society could irreparably harm our democracy.

That I agree with the outcome of the court's decision does not temper my concern that the court and not the people are responsible for establishing guidelines for our lives.

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A number of people I've spoken with have also expressed some concern about the potential conservative (religious) backlash from this decision. (the best discussion of this idea was in Worst Choice also in TNR, arguing that we'd be better off without Roe v. Wade) We'll see, especially if Rehnquist (and perhaps O'Connor or Stevens) retire now that the session is over. I still think denying gay rights is a tough sell for conservatives.

I suspect the key will center on how the discussion is framed. If the right can shift the discussion away from individual rights and toward the protection of the institution of marriage, they may win. If GLBT activists can keep attention focused on gays as a group effectively living under discrimination, perhaps domestic partner benefits and/or civil unions will have a shot.