For the record, I oppose sodomy laws. Since they're essentially unenforceable, they can be used abusively. Further, I am enough of a libertarian to find the idea of criminalizing sexual conduct to be distasteful and silly.
But silly doesn't mean unconstitutional. I expect the law to be developed based on neutral principles, not simply because a majority of justices have an epiphany.
I initially thought that I would list the different reasons the decision was intellectually suspect. Leading the list would have been the buggery done to the concept of stare decisis. Although this sound dry and academic, it is really serious stuff. It was not that long ago in the case of Casey that Roe v. Wade was upheld because of the "paramount importance" of the doctrine of stare decisis. The Supreme Court, we were told, had to stand firm in defending Roe lest the forces of reaction and anarchy strip away the thin red line of law and order from civilization. Settled law had to be protected because it was settled law.
OK, I thought, there's a neutral principle that I can accept. Perhaps it's silly and hysterical, but at least you can trust it not to be manipulated to suit the passing fancy. It at least meets my definition of law as something other than the whim of 5 justices. So what happened to Bowers - which had held that there is no privacy interest for non-procreative sexual activity - as precedent for the the present case? Answer: it got overruled without hesitation.
Thank God for Scalia. Scalia's dissent leads off with that same observation:
I begin with the Court's surprising readiness to recon-
sider a decision rendered a mere 17 years ago in Bowers v.
Hardwick. I do not myself believe in rigid adherence to
stare decisis in constitutional cases; but I do believe that
we should be consistent rather than manipulative in
invoking the doctrine. Today's opinions in support of
reversal do not bother to distinguish?or indeed, even
bother to mention?the paean to stare decisis coauthored
by three Members of today™s majority in Planned Parent-
hood v. Casey. There, when stare decisis meant preserva-
tion of judicially invented abortion rights, the widespread
criticism of Roe was strong reason to reaffirm it...
After ventilating the supposed diferrences between Roe and Boswick, Scalia concludes:
To tell the truth, it does not surprise me, and should
surprise no one, that the Court has chosen today to revise
the standards of stare decisis set forth in Casey. It has
thereby exposed Casey's extraordinary deference to prece-
dent for the result-oriented expedient that it is.
Which, of course, is true of Lawrence v. Garner. Thus, for example, there is a remarkable passage where Kennedy seems to imply that (a) the concept of homosexuality did not exist until sometime in the 19th century and (b) therefore, there is no historical tradition criminalizing distinctively homosexual conduct and (c) "public criticisms" against homosexual are of recent vintage such that (d) (I assume) that framers of the Fourteenth Amendment really intended to protect gay sex.
Huh????
Even if "homosexuality" as a continual, steadfast preoccupation of a self-identified group didn't develop until the late 19th Century, I rather suspect that the idea of "perversion" was understood by the Framers of the Fourteenth Amendment to include anyone who occasionally or regularly engaged in "buggery" or "pederasty." Clayton Cramer effectively demonstrate the Court's spurious abuse of history on this subject. I'll second that point with this observation - no one with an objective interest in history cannot read the Majority's decision without wincing at the semantic sleight of hand employed to find some historical precedent for its result oriented decision.
Well, I will once again issue my challenge: if non-procreative consensual sex is protected by the Fourteenth Amendment, why doesn't this principle include necrophilia and incest?
As Scalia observes, the legal system should be busy for years sorting this one out.
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