More on Lawrence v. Texas

[Earlier posts here and here.]

1. What I took to be my slightly idiosyncratic position — liking the result but disliking the legal reasoning — seems to be the view also of Jeffrey Rosen, who surely knows more Constitutional law than I do.

2. Clayton Cramer notes Rosen’s (and my) agreement with him on the legal reasoning, even while disagreeing strongly on the substantive point. I share his pleasure that for once our views coincide. But he seems confused about the Biblical status of the ban on male-on-male sex when he says that the decision makes it no longer the case that the Ten Commandments are at the foundation of our legal system. In fact, that rule is exactly in parallel with the rule against eating shellfish: both are said to be “abomination,” which seems to be a technical term meaning roughly “otherwise harmless things forbidden to Jews as Jews, but not to human beings generally.” Compare this with a really fundamental rule, part of the Noachic covenant and therefore, in the Jewish understanding, incumbent on all people alike: the ban on eating meat au jus, or as the King James version has it, “with the blood thereof.” The capacity of human beings to attribute their own prejudices to their sacred texts is really quite astonishing. I wonder what Clayton’s position on usury is?

3. Jacob Levy says that the Court’s decision leaves both the sodomy provision of UCMJ and “don’t ask, don’t tell” right where they were. That seems right legally. But I’m not sure it’s true politically. It’s hard to imagine anything sillier than a law that would have denied Julius Caesar a commission as a second lieutenant, and the “small-unit cohesion” argument that carried so much weight in 1993 turned out to be bogus. () This seems like a good issue for gay activists to start an argument about.

4. The Republicans seem to be waffling on the question of whether to continue the anti-gay kulturkampf, and if so how to do so. Frist is going to push an anti-gay-marriage amendment to the Constitution, but Bush says it’s too early to tell whether such a thing is necessary.

5. I didn’t know that Bush, as a candidate for Governor, had threatened to veto any repeal of the law struck down in Lawrence, and made his defense of that law an issue in his campaign against Ann Richards. But I should have been able to guess.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com