Lawrence affirms the proposition that the Constitution protects a ‘zone of privacy’ from government regulation. Scalia understands that. His angry dissent clearly sets out his belief that "a governing majority’s belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation." Scalia goes further: he asserts that "there is no right to liberty under the Due Process Clause, though today’s opinion repeatedly makes that claim."
Poor Justice Scalia. He’s lost the culture war.
There has been no dearth of reaction, pro and con, to the Supreme Court’s ruling striking down sodomy laws in Lawrence v. Texas. But while gay rights activists were understandably elated by the ruling, it really wasn’t about gay rights at all. It was a decision about the proper role of the state.
The so-called “culture war” means many things to many people, but at its base it has been a battle between those who believe that government should define and impose wide-ranging moral standards, and those who believe that the Bill of Rights protects personal autonomy (the ‘privacy rights’ that the far-right scorns) from state intrusion.
Lawrence affirms the proposition that the Constitution protects a “zone of privacy” from government regulation. Scalia understands that. His angry dissent clearly sets out his belief that “a governing majority’s belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.” Scalia goes further: he asserts that “there is no right to liberty under the Due Process Clause, though today’s opinion repeatedly makes that claim.”
This is really what the culture wars are all about. On the one hand are those who believe that the Bill of Rights limits the power of government and protects individuals from the “passions of the majority” that so worried the Founders. They believe that our legal system was never intended to constrain private behaviors that do not harm others, and that protecting individual liberty was a primary purpose of the Bill of Rights—a purpose encompassed by the 14th Amendment’s Due Process Clause.
On the other hand are those like Justice Scalia, who believe that government can adopt the majority’s definitions of moral behavior and arrest you for not behaving accordingly. This is not limited to homosexual behavior; he quotes approvingly from a case holding that people have no right to engage in intercourse outside of marriage.
In fairness, behaviors characterized as “private” by some observers will be seen by others as having socially detrimental consequences. But as the majority in Lawrence recognized, there are also detrimental consequences from passing laws that by their very nature can only be applied in an arbitrary and selective manner—laws that do not make us safer, or advance other proper governmental interests, but serve only to disadvantage or degrade people who are different.
What Justice Scalia and his supporters frequently forget is that—as a friend of mine used to say—poison gas is a great weapon until the wind changes. Their willingness to allow the majority to prescribe our behaviors implicitly assumes that the majority will always agree with them. But a government with the power to tell women that they cannot abort, for example, can also tell them that they must.
The Lawrence case is not about a “right” to practice homosexual sodomy. It is about a right to be free of government as Peeping-Tom and moral nanny. It is a re-affirmation of the principle that government’s power must be limited.
