Overruled (17 page)

Which brings us back to
Lawrence v. Texas
and the looming Supreme Court battle over gay rights. When Roger Pilon saw that case coming up in late 2002, he knew immediately that it was a perfect fit for Cato's mission. Working in cooperation with Yale law professor William Eskridge, a leading authority in the areas of gay rights, equal protection, and criminal justice, Pilon, plus his Cato colleague Robert A. Levy, sat down to map out a legal strategy for Cato to use when tackling the case. “Bob, Bill, and I got together over the holidays at Bob's place up in Chevy Chase,” Maryland, Pilon remembered. “That was the beginning of it.”
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The final brief, written by Eskridge and edited by Pilon and Levy, was then submitted to the Supreme Court several months ahead of the scheduled oral arguments.

The Cato brief raised two principal challenges to the Texas ban on homosexual conduct. First, it framed the case as a conflict between the individual liberty that all Americans should rightfully enjoy and an illegitimate exercise of state power by overreaching Texas officials. “America's founding generation established our government to protect rather than invade fundamental liberties, including personal security, the sanctity of the home, and interpersonal relations,” the Cato brief
argued. “So long as people are not harming others, they can presumptively engage in the pursuit of their own happiness. . . . A law authorizing the police to intrude into one's intimate consensual relations is at war with this precept and should be invalidated.”
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Second, drawing heavily from Eskridge's pioneering book
Gaylaw,
the brief surveyed some 200 years of American history to show that while sodomy laws may have been on the books since the nation's founding, those laws were originally directed overwhelmingly at predatory and public acts (not private consensual conduct) and were largely aimed at the protection of children and other vulnerable groups. Regulations aimed specifically at adult homosexual conduct, on the other hand, only began to appear in the mid-twentieth century. In other words, Texas's Homosexual Conduct Law could find no refuge by trying to place itself in a lengthy historical tradition. “Sodomy law's twentieth century intrusion into the private lives and homes of gay people is a regulatory expansion that violates the Constitution,”
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the brief argued.

That dual emphasis on liberty and history would help shape the Supreme Court's decision.

Gay Rights on Trial

The Supreme Court heard oral argument in
Lawrence v. Texas,
case number 02–102, on the morning of March 26, 2003. Up first at the lectern that day was Washington lawyer Paul M. Smith, representing Lawrence and Garner in their challenge to the Texas statute. “The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of,” Smith began, explaining to the Court that this approach violated the fundamental right of all persons under the Fourteenth Amendment “to be free from unwarranted State intrusion
into their personal decisions about their preferred forms of sexual expression.”
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Because the state was unable to offer any justification for its restriction except “we want it that way” and “we don't want those people over there to have that same right,”
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Smith argued, the sodomy law must be struck down as an illegal exercise of government power.

“You can put it that way,” responded Justice Antonin Scalia, reacting to Smith's characterization of the state's motives, “you can make it sound very puritanical.” But Scalia failed to see why the majority's disapproval of homosexuality did not qualify as a permissible basis for legislation. “These are laws dealing with public morality,” Scalia stressed. “They've always been on the book, nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them.”
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As Scalia saw it, the only question that mattered was whether a cognizable constitutional right was at stake. “Any law stops people from doing what they really want to do,”
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he told Smith, but that fact alone does not make any of those laws unconstitutional. Scalia left no doubt he believed the majority was entitled to write its moral views into law, including when those views made private homosexual conduct a crime.

It was the libertarian-conservative debate in a nutshell. Does the majority have the right to rule in wide areas of life simply because it is the majority? Or does individual liberty come first, a fact that requires the government to provide the courts with a legitimate health or safety rationale in support of every contested regulation?

That philosophical divide would be thrown into even starker relief once Charles A. Rosenthal, the district attorney of Harris County, Texas, rose in defense of his state's Homosexual Conduct Law. “Texas has the right to set moral standards and can set bright line moral standards for its people,” Rosenthal told the Court. “And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.”
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Justice Stephen Breyer quickly pushed back against Rosenthal's insistence that public morality alone offered a sufficient justification to sustain the law. What about banning other things a majority of the citizenry might find immoral, Breyer asked him. “People felt during World War I that it was immoral to teach German in the public schools,” he observed, referring to the Supreme Court's 1923 decision in
Meyer v. Nebraska,
which struck down that state's ban on foreign-language instruction for children (over the dissent of Justice Oliver Wendell Holmes). “Would you say that the State has every right” to pass a law like that? “See, the hard question here,” Breyer continued, “is can the State, in fact, pass anything that it wants at all, because they believe it's immoral? If you were going to draw the line somewhere, I guess you might begin to draw it when the person is involved inside his own bedroom and not hurting anybody else.”

As Rosenthal began to answer Breyer's questions, however, a seemingly impatient Scalia jumped back in to supply his own answer. “The rational basis is the State thinks it immoral just as the State thinks adultery immoral or bigamy immoral,” Scalia declared.

“Or teaching German,” Breyer immediately shot back.

“Well,” Scalia began to respond, before Chief Justice William Rehnquist promptly silenced them both. “Maybe we should go through counsel, yes,”
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Rehnquist gruffly commanded. It would not be the last time Breyer and Scalia debated judicial philosophy on the bench—or off.

Rosenthal remained at the lectern for another eight minutes answering the justices' questions, but by that point it was clear to most observers that the damage was done to his side of the case. Texas had seemingly failed to convince a majority of the Court that its law rested on anything more than a moral disapproval of homosexuality, and that justification alone appeared very unlikely to persuade five or more justices to vote in support of the statute.

Exactly three months later, on the morning of June 26, the Supreme Court dispelled any remaining doubts by announcing its decision in the case. Not only was the Texas statute struck down, the Court declared, but the 1986 decision in
Bowers v. Hardwick
was overruled as well.

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places,” began the majority opinion of Justice Anthony Kennedy. Moreover, “liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
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In the Court's view, that autonomy clearly included the private, consensual behavior at issue in the case. Having established that the constitutional guarantee of liberty was at stake, Kennedy continued, the burden therefore fell squarely on the state to justify its intrusion. Since Texas had failed to do so, outside of simply pointing to the majority's moral opprobrium toward homosexuality, the law failed to serve a legitimate government purpose and was declared to be null and void. Among the authorities relied on to support this position was the Cato Institute brief, which Kennedy twice cited approvingly, essentially adopting the brief's broad libertarian stance and detailed historical analysis as the Court's own. As for the seventeen-year-old decision in
Bowers v. Hardwick,
Kennedy continued, “its continuance as precedent demeans the lives of homosexual people.” That ruling “was not correct when it was decided,” he held, “and it is not correct today.”
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“A Court That Is Impatient of Democratic Change”

Writing in dissent, Justice Antonin Scalia accused his colleagues in the majority of abandoning all pretense of fair and impartial judging.
“Today's opinion is the product of a Court,” he wrote, “that has largely signed on to the so-called homosexual agenda.” Never mind that most Americans do not subscribe to that agenda, he continued, the Court has forgotten its role as a neutral voice in our democratic system and “taken sides in the culture war.”
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What's more, Scalia complained, the
Lawrence
majority had just upended the Court's own precedents in order to engage in a bout of libertarian judicial activism. Pointing to the Court's long line of post-New Deal jurisprudence, where in case after case the Supreme Court had said that only “fundamental” rights are entitled to strong judicial protection, Scalia accused the Court of inventing a new fundamental right to homosexual sodomy without having the courage to come right out and say so. Texas's Homosexual Conduct Law “undoubtedly imposes constraints on liberty,” Scalia observed. “So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery,”
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he wrote, thereby linking the rationale in
Lawrence
to the Court's 1905 ruling in
Lochner,
which overruled a maximum hours law for New York bakers. Yet according to the legal regime that reversed
Lochner
and has been in place since the New Deal, Scalia summarized, a mere constraint on liberty was not enough to trigger searching review by the courts. This case called for judicial deference, Scalia maintained, not judicial scrutiny. To qualify as a fundamental right, he continued, pointing to the Court's previous cases, that right must be “deeply rooted in this Nation's history and traditions.”
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The right of homosexuals to commit sodomy, Scalia announced, plainly failed to meet that test. “What Texas has chosen to do is well within the range of traditional democratic action,” he concluded, “and its hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change.”
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A Libertarian Decision
?

Scalia had a point. In a long line of cases stretching back to the 1938 ruling in
United States v. Carolene Products Co.,
the Supreme Court has routinely enforced a distinction between “fundamental” rights, such as free speech, which are entitled to searching judicial protection, and other rights, such as economic liberty, which are not. Scalia was also correct when he said that the Court had developed a test over the years to determine whether or not a particular right would be recognized as fundamental, and he was correct yet again in saying that Kennedy's majority opinion in
Lawrence
failed (or refused) to apply that test in order to determine whether or not gay rights should now be counted as fundamental under the Court's precedents.

But was Scalia also correct when he said that Kennedy's approach in
Lawrence
violated the Constitution? The members of the libertarian legal movement thought not, and one of its leading figures promptly stood up to claim
Lawrence
as a victory for their approach to the law. Writing on the website of
National Review,
libertarian Boston University law professor Randy Barnett, who in 2012 would be described as “the intellectual architect”
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of the legal challenge to President Barack Obama's health care law, made the case that Kennedy's opinion in
Lawrence
was a long-overdue “libertarian revolution” against the misguided judicial deference first imposed on America during the Progressive and New Deal eras.

“If you reread his opinion,” Barnett wrote, “you will see that Justice Kennedy never mentions any presumption to be accorded to the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental.” Instead, Barnett continued, Kennedy “puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty—unlike, for example, actions that violate the rights of others, which are not liberty but license.”

In other words, the Supreme Court had settled a major case by rejecting the sweeping judicial deference championed by the likes of Oliver Wendell Holmes, Felix Frankfurter, and Robert Bork. On top of that, the Court had done so by breathing real life into the promise of liberty guaranteed by the Fourteenth Amendment, the very thing libertarians have been urging since the time of Justice Stephen Field. As for Scalia's
Lawrence
dissent, Barnett wrote, it was “both entirely predictable and remarkably feeble.” To say that the majority has the right to rule simply because it is the majority, Barnett argued, is the worst sort of circular logic. “This judgment of morality means nothing more than that a majority of the legislature disapproves of this conduct, which would be true
whenever
a legislature decides to outlaw something,” he wrote. “Such a doctrine would amount to granting an unlimited police power to state legislatures.”
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Put differently, the judiciary is supposed to slam the brakes on the tyranny of the majority, not hit the gas.