Stuart Banner, a new Volokh Conspirator, challenges the whole project of Constitutional interpretation by pointing out how closely (at least in some areas of law) people’s Constitutional opinions track their policy preferences. (Eugene Volokh replies.)
Perhaps it was that exchange that prompted me to reflect on the beliefs, widespread among my friends (both liberal and libertarian), that Bowers v. Hardwick was wrongly decided and that the Court is likely to more-or-less reverse it in the Texas case. I think that anti-sodomy laws are a thoroughly bad idea, and that politicians who support them are mostly pandering to prejudice. But I have a hard time wrapping my head around the idea that those laws are unconstitutional.
If the Constitution stated a right to unrestricted consensual sexual activity, or a right to privacy written in a way that included such activity under its protection, the question would be different. And if I were making a constitution, I might well want it to enshrine such rights. But that is because I think that sex, like religion, matters so much to people that we should try our best to keep it out of politics. Restrictions on consensual sex will impose considerable suffering, and arguing about sex will distort the political process. Sex is, in this regard, like religion.
But, unlike religion, sex isn’t explicitly protected by the Constitution. And the argument that sex shouldn’t be regulated because it’s none of the public’s business — like the parallel argument about religion — seems to me transparently false.
Sex, like religion, has overwhelmingly important consequences. Sex occasionally produces babies, and the rate and pattern of reproductive activity, and the subsequent behavior of those who engage in it toward the resulting children, is clearly a matter with substantial social impacts, including impacts on those who aren’t making babies themselves. Sex can also spread disease, also evidently a matter of public rather than merely private concern. And patterns of sexual activity help shape broader social patterns, as the institution of marriage makes clear.
In my view, removing the disabilities faced by homosexuals, including the rule that restricts publicly recognized marriage to opposite-sex couples, would on balance make non-homosexuals better off. (It’s very hard to see how recognizing gay marriage could fail to reduce the rate of HIV transmission, for example.) Even if I didn’t believe that to be the case, I would still support getting rid of gay-unfriendly laws because I think homosexuals are morally entitled to policies that treat them decently, even at some cost to others.
But I don’t see the arguments for the contrary empirical and moral judgments as so obviously flimsy that the courts ought to overrule the legislatures. That a given law bears unusually heavily on one class of persons can’t possibly, by itself, make it a violation of the principle of equal protection. Assault statutes, after all, bear heavily on those with assaultive personalities: and, for that matter, on males as opposed to females. The ban on gays in the military, because it punishes status rather than conduct, seems to me harder to defend, on an equal-protection basis, than the sodomy statutes.
I’ll be happy if the Court reverses Bowers, and even happier if its doing so, or failing to do so, helps split the Republican coalition. That’s not the same thing, however, as thinking that striking down the law would be right as a matter of Constitutional interpretation.