Many observers (even Jerry Falwell) expect the court to reverse Bowers and hold that state laws against sodomy violate the Constitution's right of privacy. What will happen if it does?
If similar actions by state courts are any guide, not much -- at least, so long as the Supreme Court is smart enough to take some cues from their approach. In numerous cases around the nation, state supreme courts have applied state constitutions to overturn similar laws without creating much of a fuss. This is partly because times have changed, but it's also because, for the most part, those state court decisions are written in terms of longstanding limitations on government power rather than on breathless declarations of new rights.
Some commentators, including Robert Bork, would argue that such an approach is inappropriate for the U.S. Supreme Court. In their opinion, the Supreme Court should only strike down state laws when the Constitution affirmatively prohibits them. But such a narrow reading of federal power (and a broad reading of state power) runs afoul of the Framers' intentions. The Framers may not have been libertarians, exactly, but they certainly were not enthusiastic regarding untrammeled government power at either the state or federal level.
As Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution, one of the most influential treatises of the 19th century (and, ironically, a source that Bork specifically approves as a guide to discerning the original understanding of the Framers):
Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act.
A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred.
At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power.
The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect.
In other words, where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others.
That's what the state courts have said in cases striking down state sodomy laws. In Kentucky (no hotbed of liberalism) the state Supreme Court quoted a 19th-century decision holding that the state had no power to regulate the private consumption of alcohol:
The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver.
By the same principle, it held, regulation of sodomy was none of the state's business:
The usual justification for laws against such conduct is that, even though it does not injure any identifiable victim, it contributes to moral deterioration of society. One need not endorse wholesale repeal of all "victimless" crimes in order to recognize that legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior.
Tennessee's Court of Appeals said something similar in striking down Tennessee's law against homosexual sodomy. "Even," said the court, "if we assume that the Homosexual Practices Act represents a moral choice of the people of this State, we are unconvinced that the advancement of this moral choice is so compelling as to justify the regulation of private, noncommercial, sexual choices between consenting adults simply because those adults happen to be of the same gender."
And Georgia struck down the very same law that the United States Supreme Court upheld in Bowers. (And – though Georgia's attorneys had sworn to the U.S. Supreme Court that the Georgia law didn't apply to heterosexuals – the case involved not homosexual, but heterosexual sodomy). The Georgia Supreme Court noted:
Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bound of the police power.
In a separate concurrence, one of the justices added:
The individual's right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong. Simply because something is beyond the pale of "majoritarian morality" does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers.
I wonder if such reasoning will be applied to economic regulation next? There's some indication that it might.
But what's most interesting about these cases is that they aroused very little uproar. Part of that, I imagine, is because public attitudes toward homosexuality – and (as any glance through a popular women's magazine will demonstrate) more-adventurous heterosexuality – have changed. But I think it's also because of the way these opinions are written. Overly eager judicial announcements of new rights set people's teeth on edge. But limited government power is an American tradition. Perhaps the Supreme Court will take note.
Glenn H. Reynolds is professor of law at The University of Tennessee, Knoxville and publishes the InstaPundit.Com Web site.