More Progeny of the Lawrence Decision

More Progeny of the Lawrence Decision

I've previously mentioned how the Lawrence v. Texas (2003) decision (based on false history) produced a number of lawsuits and decisions that pretty well confirmed Justice Scalia's concern that it would largely destroy laws that reflect any sort of notion of sexual morality. In some cases, I find the laws in question silly or stupid--but they are certainly Constitutional. In other cases, the laws being challenged are, I would say, pretty useful laws to have on the books, such as the law against adultery and a law against soliciting sex in public restrooms. Oh yes: and this Oregon law intended to protect the mentally defective from being taken advantage of sexually.

Now, the 9th Circuit has decided that the military's "Don't Ask, Don't Tell" rule should be reviewed based on the heightened scrutiny standard, not the rational basis standard of review. In practice, this means that it is substantially more difficult for the military to discharge homosexuals from the military.

I have been somewhat ambivalent about "Don't Ask, Don't Tell." I know that there are many homosexuals who are serving in our armed forces and doing a fine job. The plaintiff in this case, Major Margaret Witt, sounds like one of those examples. Most of them keep their sexuality private--and it sounds like Maj. Witt was "outed" by a former lover. (Or perhaps this is all an elaborate test case.)

At the same time, as I discussed near the end of this posting, our military developed this anti-homosexual policy in relatively recent times--and the incident that the Wall Street Journal article I quote describes is one that, to put it bluntly, seems to be pretty common among homosexual men--the use of power to coerce sexual compliance from straight men. (And yes, there's definitely a problem with straight men using power against women in similar situations.) There are times that forcing homosexuals to be discreet about their orientation has some positive benefits--at least, it restrains some of the more outrageous behavior.

Lawrence has opened up a can of worms, and with the increasing acceleration down the slippery slope, it appears that the courts will impose full equality for homosexuals in very short order--followed by full equality for polygamists and pedophiles.

The bigger problem, unfortunately, is the entire notion of "standards of review." As Chief Justice Roberts pointed out during the oral arguments for the Heller case, this ladder of "rational basis," "heightened scrutiny," and "strict scrutiny" is not in the Constitution, and is actually of very recent origin.

My reading of how this standards of review idea came about is that at least into the twentieth century, the courts recognized one standard of review: did the federal or state constitutions prohibit a certain legislative action or not? If Congress or a state legislature was prohibited from action X, then they could not take action X. By the 1960s, however, judges were very liberal, and recognized that if they used this categorical prohibition model, then there would be very limited opportunities for the courts to pick and choose which laws to allow, and which to strike down.

This "standards of review" approach gave the courts a series of tools by which they could pick and choose which laws they could strike down and which they could uphold. When you go back and start reading the various Supreme Court decisions on this, you will quickly find that there is no clearly stated model for "standards of review," and in many of these cases, the notion of "standard of review" is clearly something that has been read back into the decision--the notion of "standard of review" is at best implied in these decisions.

I was starting to work on a law review paper about this, but it is hard to get much enthusiasm up for a careful analysis of what is fundamentally a dishonest approach to Constitutional law.