My friend David Link, an L.A. lawyer who has followed these issues for a long time, writes in response to my earlier posts about Hugh Hewitt's arguments (David's note was part of the post that my browser ate on Friday):
Not to further complicate an already complicated discussion, but there is actually one more debate going on here than you or Hugh note. Hugh points out (1) the morality of same-sex relationships. You add (2) the political debate, which I'm sure Hugh does not disagree is an issue. He mentions the Supreme Court case, but that actually includes two issues, only one of which he mentions. He says the court ought not to strike down the Texas law based on the reasoning in Bowers v. Hardwick. But Hardwick dealt with a single issue -- how far the constitution's right to privacy went. As that case held, the liberty protected by the constitution had been interpreted to include privacy in certain sexual and family matters, and the majority held that however far that right went, it did not include consensual, adult, private homosexual sodomy. Issue one in the current case is whether that is still good law.
However, this case involves another issue that is far more important to lesbians and gay men -- the application of the constitution's explicit equal protection clause -- something Bowers did not address, and Hugh surprisingly leaves out of his discussion. The Georgia sodomy law in Bowers did not distinguish between homosexual sodomy and heterosexual sodomy. Thus, as one of the dissents pointed out, it was a mystery why the majority went off on homosexuals. While the plaintiff in that case was, in fact, gay, under the law at issue, it made no difference. It was as if the majority were to decide, given an Asian defendant in a murder case, that they would craft a rule for Asian murder, or Asian Miranda rights, or Asian due process.
The Texas law throws open that bizarre aspect of Hardwick. Texas permits heterosexuals to engage in all the sodomy they want, and prohibits it only for lesbians and gay men. This brings the equal protection clause into play. One of the fundamental aspects of our democracy is that a majority may not impose on a minority rules it does not impose on itself, unless there is a good reason. While the level of scrutiny a court will give to such laws varies, at the very least the majority must have a rational basis for imposing rules on minorities it does not choose to impose on its own members. Thus, the court may very well decide that, while states may continue to prohbit sodomy despite the liberty and privacy jurisprudence, they cannot prohibit it for one group and not for another -- a state sodomy law must apply to all citizens or none under the equal protection clause.
While the equal protection rationale would do, I prefer the court taking the first route and overturning Bowers v. Hardwick. If the constitution's protection of liberty does not include protecting citizens from the government's intrusion into the privacy in one's own bedroom, then it isn't a very meaningful sort of liberty in one of the most central spheres of a person's life. And that applies to heterosexuals as well as homosexuals. One of the things that was the most disturbing to me about Senator Santorum's remarks on sodomy was that, while the AP reporter included that very unusual parenthetical (gay), it is not clear to me that that is what the Senator actually said, something Andrew Sullivan has pointed out. The transcript of the remarks is as follows:
"And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."
This suggests to me, as does the rest of the transcript, that the remarks apply to all forms of sodomy or non-procreational sex. The Senator said, after all, that he does not believe the right to privacy exists in the constitution at all. For some reason, whenever sodomy comes up, we immediately think homosexual sodomy, and somehow make heterosexual sodomy invisible. That's exactly what the majority did in Bowers v. Hardwick, never even mentioning heterosexual sodomy in a case about a law that made no distinctions. That made the Lawrence v. Texas case necessary -- to point out how distorted our legal discussion comes when homosexuality is involved.
I clearly disagree with Hugh as a legal matter on the privacy/libertyargument. But by leaving out the equal protection argument, he fails to say why, if Bowers v. Hardwick is upheld, it would not -- and should not -- also apply to him.
That equal protection argument might go further than some of its advocates want. The principle calls into question "hate crime" laws. How, if we're equally protected, can you punish someone more severely for gay bashing than random citizen bashing?