Tuesday, 8 July 2003

Opportunities, the Supreme Court, and Sodomy

I haven’t written about the Supreme Court’s decision in Lawrence v. Texas until now for a number of reasons. First and foremost, I’m still working on dissertation revisions (which are going fairly well, much to my surprise), but also because I’m in broad agreement with where the Court came out. My general view on matters of individual liberty is that intrusions upon them by government should be subject to the strictest of tests: namely, in court parlance, strict scrutiny all-around. Absent a compelling governmental interest, there’s no good reason to restrict speech, religion, possession of firearms—or what forms of consensual sex people can engage in. Not only did the Court do the right thing for homosexuals, they did the right thing for millions of heterosexuals across the nation.

However, there’s a lesson in Lawrence—and the Supreme Court agenda at large—for my liberal and conservative friends alike, who decry the Court pronouncing against their preferred policies. It’s pretty simple: don’t pass laws that will invite activist behavior by the Supremes. If Texas’ legislature hadn’t been stupid enough a few years back to enact a new law against sodomy, the Court wouldn’t have been in a position to decide the issue. Don’t want affirmative action thrown out? Don’t pass laws that practically beg the Court to overturn it.

I won’t deny there are problems with the Supreme Court as currently constituted. The way the two halves of the court are polarized risks turning the interpretation of the Constitution into a barometer of Sandra Day O‘Connor’s current mood (as we’ve seen before during the absolutely horrid period where Powell was the swing vote—anyone who’s read Buckley v. Valeo, the current controlling precedent for campaign finance law, knows exactly what I mean). And, given the current polarization on Capitol Hill, I don’t see the Court improving anytime soon. But, on the other hand, they are the only branch whose current members at least show some semblance of having read and understood the Constitution, so for now I reluctantly cast my lot with them.