Privacy vs. Equal Protection

The Lawrence decision. This is one of the best decisions to come out of SCOTUS since the Boy Scouts decision, ironically enough. Both rulings affirm human rights, in the first instance affirming (not granting) the right of people to sexually do as they please in private, and in the second, affirming the right of people to associate only with those they choose to.

I'm glad that the court chose to overturn the Texas statute based on privacy rather than equal protection for the simple and obvious reason that if a state had an anti-sodomy law which applied equally to gays and straights, an equal protection argument would be meaningless. Overturning the law on equal protection grounds would have implied that an all-sodomy ban, as opposed to the Texas-style gay sodomy ban, would be perfectly acceptable. This is offensive even without considering the unequal enforcement such a law would likely have received.

The complaints of social conservatives (with whom I agree on many other issues and some of whom are, and will continue to be included in my blogroll) that the institution of marriage and the family is undermined by this decision doesn't hold any water as far as I can see. In America, people should be free, consensually, to undermine whatever Western or other institution they want to. Consensually is the important qualifier there. A person shouldn't be free to undermine the institution of private property, for instance, if it's my property and I don't consent. But in Lawrence, consent is not at issue.

I understand the social conservatives' argument. Life would be morally simpler if their ideas could remain law. But the US is not a theocracy. The culture war can only be won by persuasion and voluntary compliance. Morality laws will not win converts; they will only coerce those who don't believe. And using persuasion alone, they will lose some battles. But United States law should not favor what we think is morally right; US law should keep its hands off the inalienable rights of men (that's what the Declaration of Independence says).

It's not just right-wing morality that shouldn't be encoded into law by the Court, left-wing morality shouldn't be either. I think that the government shouldn't discriminate on the basis of sexual orientation, but that doesn't mean that individuals shouldn't be allowed to if that is their will. Freedom of association is just as much a part of the First Amendement as the more widely respected freedom of speech, and First Amendment absolutists should support the Boy Scout decision with as much enthusiasm as they did the Skokie, IL decision.

With this Supreme Court, we have for the first time in a long time, appreciation of the freedom of association. We have in them an appreciation for the Ninth Amendment and an understanding that the Constitution does not grant us rights, that we have more rights than are enumerated therein, and that the government's duty is to stay out of our way in areas where it is not granted authority.

It's a victory for the libertarian right and the libertarian left (if the latter exists that is). Freedom has won here. Social conservatives and/or authoritarians will need to look elsewhere for enforcement of their morality, whether it's popular or not.