The political impact of Lawrence v. Texas

Jacob Levy opines that Lawrence v. Texas will turn out to be good for gay rights (because the weight of national opinion is on the Court’s side) and not bad for Republicans, who now don’t have to defend the indefensible and who get to argue about gay marriage instead, which is much more favorable ground for them politically than the sodomy laws.

That seems reasonable, but Levy doesn’t answer Phil Carter’s question: Where does the decision leave the prohibition of sodomy under the Uniform Code of Military Justice, and the “don’t ask, don’t tell” policy?

It’s pretty hard to defend the UCMJ provision in light of Lawrence, but it can’t be argued that Lawrence squarely resolves it. So the Administration has to make a decision, and it looks to me as if it loses either way.

Unlike merely acquiescing in a Supreme Court decision which it can say (at least out of one side of its mouth) it disagrees with, moving to repeal the UCMJ provision, or to let it become a dead letter through non-prosecution, or refusing to defend it against a Constitutional challenge, would outrage an important part of its base. So also on the question of letting open gays serve. Those are questions on which the Christian Right has kept the Republicans squarely on what Levy calls (I think correctly) “the wrong side of history.” So it doesn’t look to me as if Bush has a good move. I predict he’ll try to duck the question, but I’m not sure he’ll be able to do so for a full fifteen months.

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