Breaking Glass

Putting the Law in Lawrence

Though America’s academics tend to the dyspeptic and hypercritical, on one day this past year, the campus mood was extraordinarily sunny.  This past June, the U.S. Supreme Court handed down its decision in Lawrence and Garner v. Texas, declaring unconstitutional a law prohibiting homosexual conduct.  In the eyes of most academics, Lawrence represented an act of liberation little short of the great desegregation decisions of the 1950’s, and the celebrations were loud and obvious, all the more so since the Court had based its decision in part on professorial advice.  Someone was actually listening to us?

Even among conservatives, opinions can differ on the outcome of Lawrence.  A respectable libertarian view holds that government should have no role in private and intimate behavior of the sort at issue in this case, so, from that view, the decision was correct and overdue.  Nobody, however, conservative or liberal, neo or paleo, should view the process that led to this decision with anything but alarm.  If the justices had struck down Texas’ sodomy law on plausible legal grounds, there would have been little cause for complaint.  What the Court actually did in Lawrence, however, is exactly what it is often accused of doing, but which it rarely does quite as shamelessly or blatantly—namely, deciding that a particular reform...

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