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Thursday, June 26, 2003

I urge anyone that hasn't actually read Justice Kennedy's majority opinion in Lawrence v. Texas to read the opinion personally --- especially before spouting off any opinions about it.

Setting to one side the rectitude of the ruling itself, Kennedy's opinion seems to avoid every interesting issue in the case, as well as any pretense to explanation of something so mundane as "the law." He never explores the relevant standards, and thus never has to answer the big questions that have hung in the "brooding omnipresence in the sky" for almost twenty years.

If one only read the news articles (feh -- ALL reporting about law sucks), or Kennedy's opinion itself, one would miss the most interesting stuff in the case. The implicit, but necessary, holdings of the case are that (1) it is not "rational" to pass a law based on a moral belief unaccompanied by victimization, and (2) the words "due process of law" necessarily and inherently protect sex because there could be no such concept as liberty if laws could restrain it.

I don't dispute these rulings, but I am disgusted by Kennedy's unwillingness to 'fess up to the essential aspects of his own decision. Scalia sure caught it though, and rightly excoriated the majority for their unwillingness to admit what they were really saying. Scalia was right to say that nothing stands in the way of gay marriage now, even though Kennedy slithers away from that conclusion. But that's not even the most interesting effect. What will happen to the crime of bigamy? Should the old-school Mormons be celebrating now that consensual sex is a "fundamental liberty" that cannot be restrained? Kennedy has opened Pandora's Box, but won't admit it.

I'm glad he opened the box (I think -- it's a big box), but I am sickened that he pretends it's still shut.

Yet again, I am torn as a left-leaning, law-loving Libertarian. The Court has reached a result I like, but has done so through an absolutely abominable opinion. Lawrence is every bit as jurisprudentially unsound as Atkins v. Virginia (banning execution of the retarded), Roe v. Wade (barring the states from passing laws restricting abortion in some circumstances), and Bush v. Gore (barring Democrats from taking office when elected). People will be criticising this opinion for years as nothing more than "legislating from the bench," and they will be right. Regardless of whether Kennedy could have reached the same result through legal analysis -- he could have and should have -- he dropped the ball and made it easy for people to hate the Court. At least he didn't mutter that crap about "penumbra and emanations."

 11:08 PM

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