is older than it's ever been and now it's even older


SCOTUS update II

Last week I posted brief outlines of the Gratz and Grutter affirmative action decisions; they were landmark decisions that will be important for years because they will be part of the academic life of the nation for the foreseeable future. The decision in Lawrence v. Texas will be remembered for another reason-- if you are not a homosexual, this decision will likely not ever directly affect you. But if you are, this decision is as groundbreaking as Brown v. Board of Education, (a comparison I do not lightly make) because for the first time the Supreme Court has ruled that "[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." In other words, the police power of the government can no longer be used to stigamatize people on the basis of their sexuality.

The decision itself is not impressive except rhetorically. Anthony Kennedy, the author, is not attempting to write a decision that will be used as a springboard for further explorations of homosexual rights. The standards of review I mentioned in the last post? Barely mentioned. One sentence close to the end of the decision tips the reader off: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This indicates that the Court is using rational basis review-- the lowest rung of the decision ladder. A curious thing has thus happened with the landmark cases of last week. Strict scrutiny is posed and overcome in Grutter, and rational basis is used to invalidate the law in Lawrence. While a rational basis "with teeth" decision is more common than a law surviving strict scrutiny, neither happen very much. I hesitate to speculate, but I sense a possible subtle shift in the Court's approaches to its standards of review for constitutional issues, and the next few years will be instructive.

In the meantime, let's celebrate the overturning of one of the worst decisions of the modern era: Bowers v. Hardwick. You may recall it made my August 2001 list of worst Supreme Court decisions ever. And now it ends. Bowers purported to find that there is no constitutional protection for sodomy, which is obviously not what a case like either Bowers or Lawrence poses. The question is rather what interest should the government have in what consenting adults do in the privacy of their own home? The answer is, essentially, none. Finally.
The link portion

Is Free Will a fallacy? This philosopher thinks so. I can't agree with him, however, because the fundamentals of choice are a cornerstone of society. Even if we can't completely control our desires, we must act like we can so that we remain in a functioning social compact. Taken to their logical extreme, the implications are truly staggering. No law, no prisons, absolute license.

Ok, so having some fundies in the high-up government concerns me. Fine. But if Ashcroft anoints himself with oil upon taking a new job in a Jesus-by-way-of-Napoleon coronation gesture, why does he use Crisco? I mean, why not a high quality olive oil?


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