The Exciting Conclusion.

Here's my bottom line on Lawrence. If its right, its right for the same reasons that Brown v. Board of Education was right. That is, it will be judged by how well it has anticipated the rising acceptance of a disfavored minority. Brown is not considered a great opinion because its legal reasoning was so compelling, but because it stood up for a principle that now, 50 years later, we think is fundamental: discrimination on the basis of race is wrong.

Lawrence will not be classified as a great opinion because of its legal reasoning. For reasons that I mentioned below, I find its legal reasoning unpersuasive. It fails to clearly specify the doctrinal test it used, or explain the application of that test, and it supports its discovery in the Due Process Clause of a liberty interest in private sexual conduct with cases that address different doctrinal categories without adequate explanation.

I also disagree with Lawrence because it posits a role for the judiciary that, long term, is harmful to democracy. The effect in this case, is that the opinion cuts off a national discussion about the equality of homosexuals - an important debate that the proponents of homosexual rights were winning - and replaces it with a discussion about Constitutional structure, history, the role of the Court, and future confirmation fights. That's a much less helpful discussion because it educates people about the judiciary, not the rights of their fellow citizens.

Having said that, though, if the court is going to use poor legal reasoning to reach beyond its role to make a nationwide social policy decision, at least they did it in a way I agree with. So, for that reason, I hope Lawrence is, at least, never demonized.
- posted by Tom Sawyer @ 6:24 PM