Jacob Levy has an excellent post on the impact of Lawrence Vs. Texas as a political matter. He doesn’t buy the backlash “this is another Roe” argument:
Sodomy in 2003 will not attract moderates to social conservatism. The number of people who feel deep moral horror or revulsion at its legality is much, much smaller than the number who feel that way about abortion. The “ain’t nobody else’s business” argument is much, much stronger in the case of sodomy than in the case of abortion (which, according to its opponents, violates the harm principle). Republican and conservative elites will try to play the judicial overreach card; but they will not be able to play anything analogous to the “we’ve got to save little babies!” card. Even John “buggery, buggery, buggery” Derbyshire is unwilling to actually defend sodomy laws as a good idea. With all due respect to my former professor Robert P. George, who co-wrote a brief trying to convince the Supreme Court of the merits of the Texas statute, that argument’s just not a political winner.
That’s why, of course, they will now shift to marriage rights. The critical point here is that public debate is in flux on this. We’ve seen considerable change in public attitudes toward homosexuality in the last couple of decades – change that is now percolating upwards to SCOTUS and elsewhere. On themarriage question alone, support for equalmarriage rights keeps growing – and is now at 39 percent in the latest CNN/USA Today poll (up from 27 percent in 1996). The social right has therefore one option: to shut down the debate now – before the numbers move even more swiftly against them. They want to designate gays as a class of people constitutionally denied equality for ever. They want the term gay relationship to be anathema to what it means to be an American – before the public dialogue shifts any further. So they will soon launch their nuke against gay men and women trying to form stable relationships: a constitutional amendment to keep gays permanently outside the possibility of equal citizenship.
A RUSH AGAINST UNDERSTANDING: And, yes, this is tampering with the Constitution. What SCOTUS just did was apply settled principles in Constitutional law to a class of persons previously vulnerable to majority whim and privacy violation. That’s called applying the constitution, not tampering with it or changing its text. The difference with the past can be seen in the difference between Sandra Day O’Connor’s argument and Antonin Scalia’s. O’Connor sees gay people as fully-fledged people, with lives and loves and needs like everyone else. Scalia sees them as people who for some bizarre reason do immoral things with their body parts. O’Connor sees that homosexuality is what people are. Scalia thinks that homosexuality is what some people do. Once you accept O’Connor’s premise, Lawrence is not tampering with the Constitution, it’s applying it, given what we now know about sexual orientation. If you accept Scalia’s premise, you can see why he thinks the door is now open to raping children and marrying German Shepherds. The reason I support O’Connor, at a very basic level, is that I know she’s right. I know as well as I know anything, that being gay is an integral part of someone’s being, not some facile choice but a complex and profound human identity – equal in all its facets to the heterosexual human identity. So for me, the issue is clear: the equal dignity of citizens and human beings. That’s why I feel so strongly about this – as do so many others.
The Dish 