The "great road" the court cut through American law in the Lawrence vs. Texas decision was the flattening of a rational jurisprudential basis to uphold a number of laws worth keeping. Justice Scalia writes, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision."
That isn't strictly true. Writing for the majority, Justice Anthony Kennedy affirms that its decision involves neither minors, nor coercive or potentially injurious sexual activity, nor sex in public, nor prostitution, nor gay marriage. In her separate but concurring opinion, Justice Sandra Day O'Connor notes that a state has a legitimate interest in "preserving the traditional institution of marriage."
But this is all a matter of semantics, Justice Scalia says. While the court doesn't wish to acknowledge it, there is no getting around the fact that in the name of privacy, the court last week broadly rolled back the government's right to impose the majority's view of sexual morality on the minority.
"The law is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed," the Bowers decision said. Now, those laws have been implicitly invalidated, and the doors are open to a radical reformation of America's legal and moral landscape – all by an unelected judiciary. The courts might not do that, of course, but after Lawrence, there is little to restrain them.
That is what rightly galls Justice Scalia. "I would no more require a state to criminalize homosexual acts – or, for that matter, display any moral disapprobation of them – than I would forbid it to do so," he writes [the emphasis is his]. The Constitution properly leaves such matters to elected officials. Sodomy laws were fast disappearing because electorates ceased to support them. Just as it did in Griswold and Roe, the court has suspended the democratic process for the sake of the sexual revolution.
Ideas have consequences. Thirty years from now, Justice Scalia will be seen as a prophet. So, for that matter, will Sen. Rick Santorum, who, in the words of Eugene Volokh, a UCLA law professor who takes a libertarian view on sexual matters, concedes that, post-Lawrence, the Pennsylvania Republican has "been proven pretty close to right." Well, yeah. That was obvious when Mr. Santorum made his controversial comments, but people were so busy fatuously denouncing him as a bigot they didn't notice the constitutional implications of his argument.
They will. So will we all. And soon