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Friday, June 27, 2003

Mom asks a good question: "Is there ANY possible way in the world to uphold laws that prohibit adult people's practicing consensual sex in private as they choose?"

Yes.

If that answer is unsatisfactory to you, here's my not-so-quick summary of Con Law I:

We live in a federal democracy, which means that a state is free to pass any law that is not barred by the Constitution or preempted by a law of the United States in an area given solely to the United States. So a clear majority of the people of Texas want to outlaw sodomy because it offends their Judeo-Christian values, even though it is a victimless crime. (This is where Scalia gets off track by citing "bestiality" and the like; there's no consent there.) The people of Texas have spoken, as is their right unless the Constititution says otherwise. But which part of the constitution -- which literal part -- says that a state cannot pass laws barring certain sexual acts? Abortion? Marriage? Contraception?

One school of thought says that the whole notion of a constitution is that it protects liberty, justice and such, and that it is simply improper to allow government interference into such things. Otherwise, the majority could win out in every circumstance, just like Ambrose Bierce's comment that a democracy can only survive so long as the majority doesn't realize they can vote themselves money out of the public treasury. Unfortunately, that approach can ignore the fact that the Constitution is just a written compact between the people and their government, and is not carte blanche for the Supreme Court to do whatever it wants to do. It contains limitations, and those limitations are words.

The other school of thought is that the Constitution only means what it says. The word "privacy" never appears in it, nor does the concept that the Supreme Court gets to decide what's morally right. That right belongs solely to the elected representatives of the people. Of course, this approach can ignore the fact that Constitutions are deliberately written with vague terms ("freedom," "due process," and the like) that offer the courts a lot of leeway in interpretation.

The result is an absolutely extraordinary strain upon the words of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (The prior clause about "privileges and immunities" was effectively erased from the Constitution in 1873, in The Slaughterhouse Cases. Of course, that was a travesty, but it's too far gone to resurrect at this point.) The same pressure is put on the similar language in the Fifth Amendment, applicable to the federal government.

Much has been made of the notions of "equal protection" and "due process," and how they are unhelpfully reflexive. "Equal protection" means that all people situated alike must be treated alike, but "situated alike" begs the question. By what standard? Who decides what the relevant "alikeness" is? And "due process" on its face merely means that people get the usual legal processes. One explanation of these two clauses is that if Congress passed a law saying that all people that were exactly six feet tall will be killed, equal protection would require that everyone be subjected to the same measurement method, and due process would require the right to appeal to a higher court of measurement.

But, of course this analysis seems unsatisfactory to many, because we naturally think that Congress just can't do that. So a substantive element started to creep into these clauses. The equal application of the laws became a guarantee of equal laws. That is, the Supreme Court started to use "classifications" as a way to getting at the "situated alike" problem. Under this analysis, the Court first asks what classification is created by the law, and then asks what level of suspicion it should apply to that classification. And, being the ever-mushy Supreme Court, they created a sliding scale to express that idea. Because the Fourteenth Amendment was aimed at the "big issues" like race, religion, and alienage, any law that purports to sort people based on those characteristics must be "narrowly tailored" to correct a "compelling state interest." This was called "strict scrutiny." But if the law doesn't touch on those Fourteenth Amendment landmines, it need merely be "rationally related" to a "legitimate" objective. (The Court has since suggested that distinctions based on gender fall in between these extremes, through something called "heightened scrutiny," and has been very, very coy about the proper treatment of homosexuality.)

This would solve the problem of the six-foot-tall law above. The Court would ask what classification was being created, and finding that height is not any of the Big Issues, would ask whether that law was rational, or addressed a "legitimate" objective. And it's clearly wacko. Or, to use a more current example, Justice O'Connor's opinion in Lawrence would address the Texas sodomy law as an Equal Protection problem: it discriminates on the basis of sexual preference, which is irrational in the context of a sodomy law. That is, while it may make sense to outlaw all sodomy (O'Connor said exactly that in Bowers v. Hardwick), it makes no sense to allow it for some and not for others.

But equal protection only applies to classifications of persons based on their characteristics. What about a law that outlawed red pickup trucks? That was where the concept of "substantive" due process came in, which Scalia has rightly criticised as a contradiction on par with "white blackness." But the Court more or less hit on the idea that "life, liberty or property" would be meaningless if there were not some restraints on the power of Congress. So, another sliding scale gets created. If the law imposes on a "fundamental" liberty, then the Court applies a harsh standard of review. If the law merely restrains liberty -- nearly every law does -- then the court looks for a rational basis and a legitimate state interest. This makes sense in light of the explicit protections of the Constitution, such as freedom of speech or assembly. A law that restrains the freedom of speech clearly must be well-justified. A subsequent case explained that "fundamental liberties" were not merely those made explicit in the Constitution; they could also be those liberties "deeply rooted in this Nation's history and tradition." But a law that restrains commercial goods need only be "rationally related to a legitimate state purpose."

But this once again leads to the great constitutional problem: how do you ask the question? Narrowly or broadly? For instance, Scalia asks whether sodomy is a "fundamental liberty" such that it is recognized by the Constitution or "deeply rooted in this Nation's history and tradition"? Scalia says no; there's no "fundamental" right to anal sex. It's hard to imagine the Founding Fathers committing treason so they could have the right to bugger each other.

A second way to ask the question is whether there is a "fundamental" right to have sex. Note that we've backed off of the details somewhat here, and the question becomes a lot harder. Does the Constitution protect sexual relations? Is the right to sex "deeply rooted" in our history? (Insert "deeply rooted" pun here.)

The last way to look at the question is to back off even further and ask whether there is a "fundamental" right "to be let alone" -- that is, a right to "privacy." This was based on the idea that any law that intrudes into the "right to be let alone" would necessarily create so many paper cuts on the explicit terms of the Constitution that it would bleed the whole document. This concept was explained as the "penumbra and emanations" of the Constitution, and Justice Douglas has been taking heat for that terminology ever since.

Note that the Constitution itself does not answer the question of what level of detail should be used. It isn't immediately apparent that one should consider only the very most narrow explanation of the law, or that one should look at the "bigger picture." People that like to use only the most narrow explanation of the law (let's call them "Scalias") criticize the "big picture" people for "legislating from the bench" and "imposing their own preferences on the law." Scalias find support in the idea that words have an irreducible meaning, and that minimal meaning is at least predictable, which is why we should be "literal" about our analysis. They also like to ask what the Founding Fathers meant by those words, which makes sense in every other context--would we ask what a modern reader makes of "Pride and Prejudice," or what Jane Austen meant? (Derrida aside, of course.) This is, of course, also very predictable in the sense that the parties now know where to turn to make their case. Scalias believe that if everyone would apply these same rules, there would be a whole lot less argument over the meaning of laws and a whole lot more responsibility placed on Congress to get the laws right in the first place -- which is laudable because Congress is elected and the Court should have a limited view of its role.

On the other end of the spectrum, the "Brennans" note that the Constitution is about limiting the power of government and the majority, and was written in deliberately expansive terms that simply are not susceptible to such narrow constructions. What is the correct definition of "due process" or "equal protection," after all? To a Brennan, a Scalia seems to avoid the real issues by taking a bull-headed or even sneaky view of the Constitution. A Brennan believes that a Scalia is avoiding his duties by refusing to acknowlege the actual scope of the Constitution; in this way, a Scalia looks like he is "legislating from the bench" or "imposing his own preferences on the law" by refusing to hold what the law clearly requires. Unfortunately, to those outside the law (and to many inside the law as well), the Brennan's interpretation of the Constitution seems less "legal," because the Scalia spends his time talking about the literal text of the law. The Brennan gets exhausted with such talk because he is talking about the text, but merely "recognizes" that the text is broad. To the Brennan, it makes no sense that the Scalia puts up with libel laws, because the First Amendment clearly states that "Congress shall make no law abridging the freedom of speech."

So you end up with questions like Roe. Is the fatal extraction of a fetus a "fundamental right" such that there is a long tradition of protection for abortion, and such that the Founding Fathers would have had it in mind? Or, is the "right to bodily integrity" so "fundamental" that the state has no business telling you what to do with your own body? Both questions are correct under the "law," yet both seem to lead to different answers.

In Lawrence, Kennedy talks about "liberty" and "privacy," and he explains at great length that Bowers was wrong to claim that condemnation of homosexual sodomy has a long tradition in America. This, along with the talk of "privacy," suggests that he is applying the "fundamental liberty" doctrine. But he simply never says so, and he never explains what the extent of this unspoken liberty is. Is it homosexual sodomy? Probably not, because he overrules all of Bowers. Sodomy? That would be the narrowest view, but it would not take note of the lugubrious discussions of "privacy" that Kennedy engages in. Consensual sex? Broader, and also possible. All matters of sexuality, including marriage and contraception? That's possible too, given the line of cases under the "privacy" heading. There's just no way to know, and it will lead to a hundred challenges.

And yet, Kennedy says that the sodomy law "furthers no legitimate state interest," which very strongly indicates that he was not calling the liberty a "fundamental" one. Moreover, as Scalia points out, he almost studiously avoids the use of the word "fundamental" or overruling the "fundamental liberty" holding of Bowers. If Lawrence wasn't a fundamental liberty holding, we have to ask a different question: was the sodomy law "rationally related" to a "legitimate state interest"? The only "legitimate state interest" offered by the State of Texas was the traditional and historical view that the majority may always pass a law to prohibit that which is morally repellent. What is especially interesting is that there is no "victim" or "societal harm" here to make the question easier, as with prostitution (societal harm), bestiality (victim), adult incest (arguably a victim or societal harm), and the like. There's nothing there but morality. And if the majority actually applied "rational basis" review to strike down a law with no other basis than "morality," it will be unprecedented. Moral laws have been a part of Anglo-American jurisprudence since at least the 1300s, and were implicitly accepted by the Founding Fathers as acceptable under the Constitution. Can the Constitution prohibit laws that the Founders themselves accepted? Kennedy's answer was that the Founders "did not presume to have [the] insight" to "know[] the components of liberty in its manifold possibilities." That is, "times can blind us to certain truths."

So. Was there a way for Kennedy to strike down the law? Certainly. He had two options, but both had side effects. The class of victimless "morality" crimes is this: adultery, fornication, sodomy, and consensual bigamy. (Pornography and the sale of sexual paraphernalia would create a borderline case, if one accepts the argument that such shops create a blight on the community.) I would argue that Kennedy could hold that all of these laws are "irrational," but he could not stop short at just one, nor could any court ever deny gay marriage.

On the other hand, Kennedy could come right out and hold that a "fundamental" liberty under the Constitution was implicated, which would have the same effect and a whole lot more, depending on how broadly you define the "liberty" -- after all, a broad definition of the "liberty" is what allows you to overturn the law, but a broad definition of "liberty" accidentally encompasses a whole lot more than the immediate case.

Kennedy doesn't want to choose. So he basically holds that gay sodomy statutes are illegal (probably straight sodomy statutes as well), and then refuses to acknowledge what he has truly done.

So, after all that, here's the answer to the question of how the law could be upheld:

Scalia believes that the question is narrowly characterized as "homosexual sodomy," which is not a fundamental liberty, so it must be reviewed under the "rational basis" test. He would argue that America has, from the time of the colonies, used morality as a proper basis for passing laws, and that therefore the Constitution could not prohibit what its drafters explicitly permitted.

Finally, Scalia would give more deference to the 1986 Bowers decision: he bitterly pointed out that the "other side" affirmed Roe against very similar attacks in 1991 by relying on nothing more than the notion that the Court shouldn't overrule recent precedent. And he has a very, very good point. As Scalia pointed out, what's good for the goose is good for the gander.


 12:44 PM

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