SILENT CONSTITUTION
In his response to Eugene Volokh and me, Hugh Hewitt argues that sodomy laws are just the normal application of "morality" to law. Hugh's a lawyer, so it's understandable that he's trying to turn the Santorum controversy into a strictly constitutional question. And he lives in California, where the legislature is more likely to pass a law requiring sodomy than banning it, so I can understand why he thinks Texas criminal laws are no big deal. He doesn't believe that where the Constitution is silent, we have no rights:
Moral choices underlay every single statute in the land. The Constitution prohibits some of these choices from informing law-making, such as law that would seek to implement the moral vision of the first few of the Ten Commandments. But the Constitution is largely silent on the issue of sexual relations. One example of an exception: Laws prohibiting interracial marriage, for example, have been struck down as violating the 14th Amendment).
He declares that "Opponents of the effort to overturn the Texas anti-sodomy statute are opponents of a convenient anti-federalism on matters sexual." As one of those opponents I can emphatically state that my support for individual over state rights is not limited to "matters sexual." On this matter, as on matters of free speech and economic liberties, I prefer the legal approach of the Institute for Justice, which filed an amicus brief in Lawrence v. Texas. From the press release:
The State has no more power to criminalize consenting adult sexual conduct than it does to regulate what I make for dinner or what time I go to bed. It's hard to imagine a more stark example of invasive government power than the power to go into bedrooms and tell consenting adults which exact activities they may and may not engage in. We believe that government power is limited, and this case is one example of government stepping over--far over--the line of proper authority.
Would Hugh apply his view of federalism to state laws requiring women to wear hijab or all businesses to close on Saturday? Or is he implicitly assuming that Christians or secularists will always constitute the majority?
The balance between federalism and individual liberty is a difficult one. Some of the most interesting work on the subject (though not, to my knowledge, on "matters sexual") is done by Michael Greve's Federalism Project.