Jeff Rosen writes in the New Republic about sex laws, and among other things says this:
Kennedy's opinion in Lawrence v. Texas, of course, caused Scalia's head to explode and provoked his alarmist warnings about the impending demise of morals legislation.... [Discussion of the continued upholding of prostitution laws omitted.-EV] Other civil libertarians tried to challenge an Alabama ban on the distribution of sex toys. If there is a constitutional right to engage in private sexual conduct, they argued, there should be a right to use (and buy) sex toys. But, in 2001, a federal appeals court rejected their argument, holding that the state has a legitimate interest in promoting "public morality" — even if that only involves being offended by someone else's private conduct. [I think Rosen is talking about the 2007 decision in the Alabama lawsuit, not the pre-Lawrence 2001 decision.-EV]
It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well.
It struck me as odd, though, that the article omitted the 2008 federal appeals court decision that did strike down a Texas sex toy ban precisely on Lawrence v. Texas grounds. This decision suggests that Scalia's factual predictions "about the impending demise of morals legislation" are not quite as "alarmist" as the article suggests (at least to those who, like Scalia, would find such a demise to be normatively alarming).
Perhaps the Texas decision might be eventually reversed by the appeals court sitting en banc, or by the Supreme Court. But it seems to me it would have been worth mentioning alongside the contrary Alabama decision.
Conservatives may object to homosexuality, abortion, premarital sex, etc., typically on biblical or quasi-biblical grounds.
OTOH, it is difficult to find venerable traditions (of the kind lauded in Bowers) to the effect that mechanically tickling one's wife's clitoris until she has an orgasm, is a sin against nature, unclean, etc., etc.
I suppose one could find a few die-hards who would cite St. Augustine for the proposition that sex must be necessary, not pleasurable; but even the Roman Catholics have stepped back from accepting that proposition.
And tho you don't cite it, I do now recall that "laws against masturbation" were part of the moral edifice that Scalia feared might be toppled by Lawrence.
But let's rhetorically concede the point as regards the sex-toy law. If that's a slippery slope, it's as if we stood at the bottom of that slope and beheld, toppling down it at high speed and rolling before our feet ...
... a pebble about the size of a butt plug.
I think that the Nation, and its Morals, will survive.
But Scalia's beliefs about what his god requires humans to do will not be followed, and apparently, for him, that is enough to supply a rational basis for the regulation of masturbation.
First, by procuring pollution, without any copulation, for the sake of venereal pleasure: this pertains to the sin of "uncleanness" which some call "effeminacy." Secondly, by copulation with a thing of undue species, and this is called "bestiality." Thirdly, by copulation with an undue sex, male with male, or female with female, as the Apostle states (Rm. 1:27): and this is called the "vice of sodomy." Fourthly, by not observing the natural manner of copulation, either as to undue means, or as to other monstrous and bestial manners of copulation.
(1) and (4) would seem to be implicated, though I fear that there is more bastardized Aristotle behind them than any biblical support; note that he finds a verse citation only for (3).
Anyway, the RCC's theology does not govern the availability of quite a few things which horrified Aquinas; I fail to see why a vibrator should be any different. And Catholic Americans have proved quite flexible in picking and choosing amongst their Church's dogmas.
As Rosen himself says - in the VERY NEXT SENTENCE - "It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well. The problem with sodomy laws wasn't that they were based on moral disapproval; the problem was that the public consensus about the immorality of sodomy had collapsed."
Isn't the fact that "public consensus about the immorality of" sex toys have completely collapsed completely relevant? The fact that he chose an extreme example - upholding sex toys bans - that turned out to be a circuit split (that I assume he was simply unaware of) - hardly defeats his entire point, it just simply makes him sloppy.
To which the Scalia answer is, I'm almost certain, "Great. Petition the legislature to overturn the laws. Vote yourself via referendum. No need to ask the Court to change lawfully enacted legislation simply because it is no longer popular."
Anti-vibrator laws may be silly, but they aren't necessarily unconstitutional.
If public consensus regarding the immorality of both sodomy and sex toys has collapsed, then why was it necessary for the U.S. Supreme Court and Fifth Circuit Court of Appeals respectively to invalidate statutes passed by Texas's democratically elected legislature? Doesn't the continuing presence of these laws on the books in conjunction with their continuing enforcement by elected officials (e.g., county district attorneys) suggest that public consensus regarding the immorality of sodomy and sex toys has not in fact collapsed in Texas?
In some areas of law, it's clear that a law being "silly" would indeed make it unconstitutional -- for instance, Free Exercise Clause jurisprudence has the notion of "compelling interest", effectively a bulwark against arbitrary restrictions on religious practice that serve no general purpose. (See Wisconsin v. Yoder and Church of Lukumi Babalu Aye v. City of Hialeah.)
Lawrence v. Texas sets some kind of standard for how non-"silly" a law about private sexual practices has to be in order to be constitutional, and how courts should go about deciding how "silly" a law is. Scalia's dissent claimed that the majority opinion created a new type of rational-basis review; others have suggested it's a substantive due process analysis entirely. The majority itself discusses the (non)existence of a "legitimate state interest" in regulating private homosexual acts; this merely invites the question, what are legitimate state interests?
I suppose if some mainstream religion required the use of vibrators, then an anti-vibrator law would run into Free Exercise problems. However, I think we can all agree that the Founding Fathers did not include anything about sex toys in the Constitution, so this is, at best, rational basis. Now, I thought that we were all intelligent people, and I did not think I would get a lecture on very basic Constitutional law, but it's apparently necessary to demonstrate that we know these things.
Satisfied, or do you need the online version of the Rabbit?
No, it, at best suggests that public consensus in certain parts of the country hasn't collapsed. But, I would propose that it says something even less. That enforcement of these laws isn't done often enough and harshly enough to make a public consensus for repeal. It's not like all laws (or even stupid ones) get voted on every legislative session. There has to be sufficient interest in changing the law. There's a legislative inertia to be overcome.
Unfortunately, continued enforcement or initial enactment of silly laws does not necessarily say much about what the public consensus on those laws are. Many people don't vote, especially in state elections, and especially for minor officials, and when they do it is often for reasons that have little to do with such issues. It says more about the morals and ambitions of a particular district attorney in a given county than it says about any real public consensus.
Silly anti-sex toy laws may very well be unconstitutional. They may also be constitutional. It's a close call, I think. I lean towards such laws being unconstitutional, but then I also believe, unlike most courts for some reason, that a particular clause of the Tenth Amendment actually means something ("powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people") At the end of the day, though, if such laws are constitutional, then it's a good example of how the constitution isn't perfect. As a matter of policy, I think most areas of generally private conduct should be beyond the power of the government.
It's hard to say because if you believe that Lawrence was wrong, and that a law should be upheld on rational basis scrutiny even if its only justification is subjective morality then its impossible that any law fails. I still don't know why everyone jumps to impugn the sincerity of the Lawrence court -- its decision makes infinitely more sense than the cynical descriptions of what the Court did.
As far as I am concerned Roe v. Wade is debatable, but if Lawrence was wrong then constitutional adjudication is almost a contradiction in terms.
Much like the voters of D.C. should simply vote to repeal the D.C. gun ban at issue in Heller instead of asking the Court to overturn it?
I'm not sure which statute you're referring to, as both Lawrence (homosexual sodomy) and Reliable Consultants (sex toys) dealt with Texas laws. But no matter when they were enacted, these laws were being enforced by elected officials right up until they were invalidated; and the State of Texas, through its elected officials, actively defended both laws in federal court. So I don't see what the date of enactment has to do with anything. Texas could have repealed these laws at any time, but failed to do so. It also could have abandoned them once they were challenged, but did not do so. Your contention cannot be that any longstanding law no longer reflects public consensus. So how are you divining the public consensus of Texas in this case?
Cornellian,
I can see how it would be confusing for you - after all, when you are so used to making up rights and putting them into the Constitution, it's hard to see how us silly originalist types actually care about what is written there.
I'll direct your attention to the Second Amendment - you know, the one that actually mentions the right to keep and bear arms [whether it be an individual right or a collective right is somewhat beside the point for this discussion - it is a right that the Founders explicitly granted us].
In the spirit of quid pro quo, can you please direct me to the Vibrator Clause?
I think you're responding to me, not Justin. But, just because some DA somewhere in Texas is enforcing these laws doesn't mean they are generally being upheld. I have never stepped foot in the city of Austin, but I can just bet you there is at least one Sex Toy Shop there. If not, they should buy back all those keep Austin Weird t-shirts. The question is, is enforcement common enough (and the penalties high enough) to allow us to gauge the true support for the law. Note that this question has NOTHING to do with constitutionality (except under the rational basis argument proposed by someone above). It does have to do with whether the laws really enjoy popular support in Texas.
From an originalist perspective, there is no Vibrator Clause. But there is a Ninth Amendment. And where is the Power of States to Outlaw Vibrators Clause?
Seems to me that the Founders also explicitly said the enumeration of some rights doesn't disparage the existence of others.
I don't doubt that the enthusiasm for morals legislation might vary from locality to locality in Texas and elsewhere. But it's notable, for example, that Lawrence arose in Houston, which is the state's largest city not some rural backwater. Moreover, while the prosecution in that case may have been carried out by a minor elected official, the case didn't end there. The State of Texas, through officials elected statewide, vigorously defended the constitutionality of the sodomy law. Texas also defended the constitutionality of its sex toys law. If public consensus for these laws has collapsed, why would public officials elected statewide go on defending them? It's one thing to contend that the mere enactment and enforcement of laws cannot definitively establish public consensus in support them, but surely these facts constitute some evidence that public consensus in support of these laws has not collapsed.
FWIW, I support the RKBA just as strongly as I support the vast well of enumerated rights protected by the 9A (and made applicable to the states by the 14A).
I'll direct your attention to the Second Amendment - you know, the one that actually mentions the right to keep and bear arms [whether it be an individual right or a collective right is somewhat beside the point for this discussion - it is a right that the Founders explicitly granted us].
In the spirit of quid pro quo, can you please direct me to the Vibrator Clause?
Read the 5th and 14th Amendments. Vibrators are property. You have the right to own property and not to be deprived of it, and shouting the magic word "sex" doesn't create an exception.
in light of the political leanings of the majority of the audience here, isn't the best argument, which nobody has raised, clearly that they're 2nd Amendment "arms"? Like guns? sorta?
Well, OK, they don't look much like muskets, but neither does an AK 47.
By the way, does the 2nd amendment, if it establishes an individual right to hold arms, protect my right to own an EMP gun, with which I could shut down the electronic ignitions of cars, or erase my neighbor's hard drive?
I expect shortly that I will be reamed from both sides of the political spectrum.
Sure Austin has sex toy shops. Reliable Consultants was a declaratory judgment action, and was filed against Ronnie Earle in his official capacity as Travis County District Attorney. Austin is in Travis County. But I'm not sure how much this proves. Minimal enforcement in Austin or elsewhere may have as much or more to do with finite public resources and more pressing priorities. It's possible that Texans on a whole continue to disapprove of sex toys, but that they're only willing to see so much of their valuable tax dollars devoted to that disapproval. That possibility is every bit as consistent with the minimal enforcement as a collapse in public consensus. At any rate, assuming public consensus is relevant to a federal court's examination of whether a rational basis supports such a law, should a federal court be engaging in what of necessity must be speculation about such competing possibilities or just take it for granted that validly enacted state laws do in fact enjoy the support of the state's citizenry?
An entirely separate question. Once I get agreement that there is nothing in the Constitution that exempts a vibrator from the scope of the term "property" we can then move on to the question of whether a particular deprivation of property is constitutional. We're still on the first question here and, apparently, quite a few people around here who probably like to call themselves textualists nevertheless add a little penumbra to the term "property" in the 5th and 14th Amendments so that it reads "property other than vibrators."
Drugs, bongs, nuclear reactors, hazardous chemicals... Health Code requirements for buildings, car inspection requirements.... yes, there a lot of things that you are not allowed to own, and there are many restrictions upon the use of other owned things, but that does not a Fifth Amendmetn violation make.
Now, where are Kurt Lash and Randy Barnett when you need them? Gentlemen - we have a raging Ninth Amendment debate here! Sure, it sounds boring in theory, but we have real-life applicability!
As for the 9th/10th/14th argument: are you guys seriously telling me that James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys? While I will not - and never have - go so far as to say that states have free rein where the Constitution does not give explicit rights, I think we can pretty safely say that states have always had the right to protect the health, safety, and welfare of their citizens. There are quintessential state interests, and, IMHO, sex toys do not fall under the aegis of federal Constitutional protection.
I know that we're all libertarians here (or most of us are), but that does not excuse results-oriented jurisprudence. Whether or not sex toys ought to be legal in a libertarian society has little to do with whether or not the federal Constitution speaks to that point.
I'm guessing you are referring to the right in the First Amendment:
"or the right of the people peaceably to assemble",
which is inapplicable to sex toys, even when used in a marital relationship: it fails the "peaceful" element (unless, of course, you and your neighbours are a lot quieter than my neighbours).
OK, so how exactly do vibrators threaten the health, safety and welfare of the citizenry?
I'm not sure what you were respondign to displaced midwesterner for. But I specifically said that "public consensus" or lack thereof has nothing to do with constitutionality. But, you were supporting the law on the grounds that the public consensus is behind it. I was challenging that notion. It should be decided on a purely constitutional (or other legal where appropriate) basis.
*gives oren a tube of KY*
...and...
nor shall any state deprive any person of life, liberty, or property, without due process of law
Two questions:
1. How can you be deprived of that which you have never owned? and
2. Why is legislation not "due process of law" in this context?
And those who do, may well be countercultural enough that Normal Godfearing Folk are reluctant to stand beside them.
Who wants to be the Texas rep who proposes to repeal the sex-toy law?
Plus, voting against the repeal is a cheap and easy way of pretending to be Pro-Morals, even though in reality neither the legislator nor the voters really give a rat's ass about the subject.
I think rational basis review is fine, if it really REQUIRES A RATIONAL BASIS and isn't just a rubber (heh) stamp.
There is no rational basis for banning sex toys. I saw some alleged by the State of Mississippi in its briefs in its own recent sex-toy case, and they were preposterous.
they're used by homosexuals. and, as we all know, homosexuals are evil things that will bring about the end of society as we know it.
He said "end." Heh heh.
[/Beavis]
Um... vibrators promote laziness among the males of the species, who ought to be manly man's men and satisfy their women. Statistically, conservative, married, Bible-belt Protestant women receive the most enjoyment from sex. Notice the correlation with states that have anti-vibrator laws. This is about sexual satisfaction, marital unity, and, of course, some state pride. If women wanted to be left to their own devices (as it were), they would move to Massachusetts.
Here's a link to the state's petition for reh'g en banc. I think the file name has been changed.
Petition for Rehearing
As for the 9th/10th/14th argument: are you guys seriously telling me that James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys? While I will not - and never have - go so far as to say that states have free rein where the Constitution does not give explicit rights, I think we can pretty safely say that states have always had the right to protect the health, safety, and welfare of their citizens. .
The idea that the people retain a significant sphere of private rights and activities which cannot be touched by government is an idea which permeates the Constitution (see 1A, 4A, 5A, 9A, preamble, and carefully enumerated list of powers, among others), and is readily identifiable in secondary sources as well.
I'd suggest Madison et al. wrote the Amendments to more clearly indicate the limitations on power of government, demarcate an expansive protection of liberty, and to indicate that powers and liberties require careful balancing. So, no, he clearly did not write the Amendments because he feared the banning of sex toys. But he didn't write the Fourth Amendment because he was concerned about internet surveillance; those arguments don't work when it comes to Search and Seizure, nor do they work here.
The text of 9A remains clear: denying the existence of unenumerated rights is an immediate violation of the Ninth Amendment. The next question should be to the nature and scope of these rights. It's possible to conclude that they don't include sexual privacy, but that's not the position of the court (Lawrence, although there are ways to distinguish this case from Lawrence). Nor do I believe it's the correct position. There's a good amount of evidence to suggest that the Constitution is to be interpreted in light of modern development*. I'd argue that sexual privacy is an important, intimate, and widely valued individual right today. Thus, I think the Ninth Amendment applies.
*Jefferson: "I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."
I think that you have misread my comments. I have not defended the laws at issue in Lawrence or Reliable Consultants on any grounds. What I'm disputing is the contention that public consensus in favor of these laws in Texas, the jurisdiction that enacted them, had collapsed prior to their invalidation. It's one thing to contend, as some do, that Justice Kennedy et al. are engaged in a legitimate countermajoritarian enterprise (i.e., liberating minority populations from unconstitutional laws that enjoy majority support), it's quite another to suggest that Kennedy et al. are in effect liberating the majority itself from laws that it does not support. (I understand that you are not necessarily saying any such thing, but my arguments weren't originally directed toward you either.) I find this latter characterization of Lawrence and Reliable Consultants untenable.
Depends on what you mean by "public consensus." If the mere fact that an elected legislature takes some action indicates a "public consensus," we would have to conclude that earmarks and the Terry Schiavo law are wildly popular.
The person who posted this probably thought he was making a great point, but in actuality, there are all sorts of quirks in the process (from the issue of local vs. national decisionmaking to the issue of who is vocal and who isn't in the political process to the issue of how people feel about unenforced laws to the issue of people's embarrassment about being seen to openly advocate for "abnormal" sexual activities) as to why this might not happen.
I responded to a post who claimed that a law being "silly" does not make it unconstitutional. I noted that in some fields of jurisprudence, it does indeed -- one example being free exercise. In other words, sometimes a law's silliness would thereby render it unconstitutional; but not necessarily always -- it appears to depend on the topic of the law.
I then ask: under what circumstances does a law's silliness make it unconstitutional? How "silly" does it have to be? I suggested that the majority in Lawrence may be viewed as establishing a standard of "legitimate government interest" for the subject matter of sexual privacy; a law which is so "silly" as to express no legitimate government interest, under such a standard, would be unconstitutional.
But I think that my principle contention has been and remains a little more modest at any rate. Specifically, it seems rather farfetched to assert that public consensus in favor of laws that remain in force and enforced has collapsed, as originally asserted by Justin. What is the basis for that proposition, other than certitude that all right-thinking people must share the same legal and moral assessments about rubber phalluses? (For what it is worth, I'm not sure what my fellow Texans ever saw in the laws at issue in either Lawrence or Reliable Consultants.)
Justin's understanding also casts decisions like Lawrence in a bizarre light. Instead of being a countermajoritarian counterweight, the Court instead functions as the oracle of our hearts' secret desires, which I guess makes Justice Kennedy Pontifex Maximus of some sort of constitutional cult. Behold: having cast his auguries and gazed into our souls, Kennedy determines that the duly enacted laws of the State of Texas do not reflect our will afterall. Thank goodness he and the Court are there to vouchsafe the majoritarian consensus that even the majority dare not voice!
I would certainly have to agree that Lawrence shows that enforcement or support of these kind of laws is not solely the province of minor officials in obscure backwaters. I also cannot be sure what exactly was motivating these officials. But I would note two things.
First, even if more prominent officials support such a law, that does not necessarily mean that their support translates to a broad consenus in support of their law. This is one of the major problems in general with arguments that the democratic process, acting through representives, means that any particular law reflects the societal consensus. Generally speaking most actions by an elected official reflects the public consensus, but because we elect people rather than vote directly on laws ourselves, any given law, even though it is supported by an elected official, does not necessarily reflect the will of the people.
Second, there is definitely an incentive (and arguably an obligation in the right circumstances) for higher elected officials to defend the actions of lesser officials, in the name of supporting the prerogatives of the state. In other words, officials often act as advocates for the state to preserve state authority, whether or not they agree with any particular exercise of that authority.
theobromophile,
Certainly it is not the case that "James Madison et. al wrote those Amendments because they were afraid that states would ban sex toys[]." But the point is not whether the Constitution and the Framers had particular factual scenarios in mind, but rather what sorts of general principles does the Constitution enshrine. The Ninth Amendment definetely envisions rights that are not ennumerated elsewhere in the text. The Tenth Amendment defintely envisions that both the states and the people themselves will retain the residual powers not assigned to or inhering in the federal government. The question then is, do the rights entrusted by the 9th to the people cover conduct such as the purchase and private use of sex toys, and, conversely, does the 10th and other constitutional principles give to the states the power to regulate or ban such conduct? This is certainly not a simple question and cannot be dismissed by simply saying that the Framers weren't thinking about whether people should be be allowed to purchase dildos.
A few days ago, on this forum, we learned the Louisiana law said a florist had to be licensed. That's pretty stupid, but how many people in that state know about that law? They can't express opposition if they don't know something exists. There is no public opinion on many laws.
Problem is, some of the OD members watching that flogging would probably enjoy it a bit too much so they'd have to declaring watching floggings illegal as well.
It's quite possible that you are right that many Texans were unaware of the sex toys law. Of course, many members of the public probably are unaware of the existence, let alone the details, of a good many more prominent laws. If that fact alone deprives laws of their legitimacy as an expression of public will or judgment then precious few laws are legitimate. What laws apart from the most basic criminal prohibitions could be said to enjoy public consensus in that case?
Of course, the same is not true of sodomy laws like the one at issue in Lawrence. The public was well aware of those laws. For that topic, we have some reasonable polling data over a relatively long period of time (late 1970s through roughly the present) as well. Here's one characterization of post-Lawrence-era nationwide polling data collected by Gallup on the subject:Is it really hard to imagine that, in a nation in which over 40 percent of respondents still are not in favor of the legalization of homosexual sodomy, a majority in a particular state, like Texas, might still favor criminalization? As an empirical matter, I think it is difficult to make the case that public consensus in favor of anti-sodomy laws collapsed prior to Lawrence in jurisdictions like Texas that had sodomy laws on the books.
You forgot one single word: FEDERAL. Insert between "of" and "government," and you will have a more accurate statement.
\
I presume you are referring to my post. Your problem, and not to be entirely snitty, is that I said that the fact that a law is silly does not ***NECESSARILY*** make it unconstitutional.
Bold, caps, and stars because you missed it the first time around, and I'm tired of explaining that which I should never have had to explain in the first place.
If public ignorance made a law illegitimate, I agree there would be few legitimate laws. But widespread ignorance does undermine the notion that a law has popular support. We might determine a predominant public attitude, but that doesn't translate into support for or against any particular law.
I remmeber when Senator Proxmire used to have the Golden Fleece Award for particularly wasteful actions of Congress. Perhaps some enterprising state legislator could compile a list of the top ten, fifty, or 100 stupid laws and publicly call for a vote to retain or junk the laws. Ridicule has a lot of power. I'd love to see who comes out in favor of a license for a florist.
Perhaps the Texas legislature? AFterall, The Texas legislature actually voted to repeal the sodomy law, and it passed by a majority. The bill was, however, vetoed by Gov. George Bush.
Therefore, with a majority of the population, as evidenced by polls, and a majority of their representatives, as evidenced by actual vote, agree that the sodomy laws should be repealed, then there is no 'public consensus' in favor of sodomy laws. Simple no?
Excepting where such protections infringe on the citizens' Constitutional rights, cf Griswold.
Absolutely not! The Founders believe that the right to keep and bear arms, like many of the enumerated rights in the Constitution, was an unalienable, natural right granted by the Creator (as stated explicitly Declaration of Independence) and that the Constitution recognized those pre-existing rights and helped secure them rather than granted them.
The Founders knew that if government grants rights it can take them away. One reason that so many of our rights have been chipped away with relative ease by government actions in recent generations is that we have forgotten they don't come from government in the first place.
Yes, some of this could change post-XIV, but the idea that the 9th places limits on state power - and, in doing so, created a very libertarian society - is appealing to this libertarian as a matter of result, but is, nonetheless, inaccurate as a matter of history.
There is no distinction made in the 14A between enumerated/unenumerated rights. Period.
PS. Where's Randy Barnett when you really need him?!
I really just cannot comprehend how the 14A can be read to make the distinction that you make. That is a sincere statement, I just cannot wrap my mind around how we have come to interpret the 14A in such a tortured manner when the language is so (IMHO) utterly clear.
Which begs the question: what are your privileges and immunities?
Where is Kurt Lash when you need him?
I've been calling for a Lash/Barnett discussion on this for several posts now. Gentlemen! M'aidez!
To answer your question (or the question that I begged, apparently): privileges and immunities ought to be understood broadly as the rights of free men in a state of ordered liberty. At the heart of that liberty is the right to a sphere of personal intimacy into which the government may not enter without legitimate cause.
Perhaps, Oren, but the Texas dildo statute, I take it, only criminalizes sale and public advertisement of dildos. Owning them, using them, and maybe even buying them aren't criminal. So how is Texas entering into a sphere of personal intimacy? Moreover, I think there are legitimate state interests here of the sort affirmed in Paris Adult Theatre ("the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers...The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.") Now, if use of the devices were criminal, I'd still think the law was constitutional, but that's not this case.
As to the Paris Adult Theater, I concede that there is a legitimate state interest but simply having an interest is not carte-blanche to write any legislation the State wants. The law in question must be related to that interest and must be shown to further that interest in some non-abstract way. The Texas Dildo Law, such as it is, utterly fails to demonstrate any connection between the activity being regulated and the legitimate state interest.
That's not to say that, simply because I believe sex-toys fall within a personal sphere of intimacy protected by the Constitution, that no such law can be allowed. I have no problem with a law that restricts dildo-shops to certain zoning areas, require their advertising to be PG-13 or that they check ID at the door (just by way of examples of laws that are logically related to a legitimate state interest).
At any rate, I don't know why we are debating the contours of how we interpret actions by the states that interfere with Constitutional rights if you seriously believe that the State has the power to tell people what to stick into their various orifices. If ever there was a sphere of intimacy that is protected, that's it.
The Texas rep who wants to curry favor with his/her constituents, if a majority of said constituents actually favor repeal.
Note that we later found out that repeal was passed yet vetoed, so the argument that such Reps can't exist is clearly false.
There isn't a consensus. There's an argument.
I dunno, but Mississippi's statute prohibited any trade in sex toys whatsoever.
The argument that this doesn't impede the use of sex toys was easily shot down by the 5th Circuit panel, on the basis of the similar argument re: contraceptives -- obviously, if I can't buy or barter for condoms, then my ability to use them is impaired.
I have yet to see any godfearing Baptist agree that permitting Bible ownership, but banning the sale of Bibles, would be no impediment to his First Amendment rights.
More generally, I just don't think there can be a serious argument that sexual intimacy is an area where the "police powers" of the state cannot be allowed to run rampant without meeting a rational-basis test.
Suppose Texas had banned any sexual position other than the missionary position, on the grounds that any other was "deviant"? How would that be materially different from a sex toy ban or masturbation ban?
If you care to comment on the actual merits of the argument instead of on one ancillary point (that was explicitly included solely for the sake of example!), I'm all ears.
Since the latter individual probably does not read every comment on all of his posts, let alone those of his co-bloggers, and the former may not even read Volokh... would you like to email and ask them to intercede?
* "A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description..."
You should come visit sometime . . . it's quite a country.
"> Who wants to be the Texas rep who proposes to repeal the sex-toy law?
The Texas rep who wants to curry favor with his/her constituents, if a majority of said constituents actually favor repeal."
Actually, most states voluntarily repealed their laws against sodomy, so there are reps who can be progressive -- if you happen to live in a progressive state. If, however, you live in a place like Virginia, or Iowa, or some other conservative place, then you are out of luck. Remember that there were several states that still had anti-sodomy laws on the books that applied to heterosexuals. Where were the brave reps who would do away with those laws? Certainly, even in those places, 'public consensus' has collapsed on having the law probite oral sex between husband and wife. So why weren't they repealed there?
Very simple. Because we still have a lot of reps out there who jump on the 'family values' bandwagon, and if you are on that bandwagon, loosing laws on sexual behavior will be seen as hypocritical.
Perhaps my point is the liberals/libertarians need to adopt better political language that conveys that it is not that we seek to demean your core values but rather that we feel they have no place being legislated. It's not an "assault of traditional values" but rather a recognition that no matter how salutary the values in question are, they can do no good codified into law and applied by the machinery of justice.
You wrote:I can find no evidence for this assertion and think you are mistaken.
George W. Bush was Governor of Texas from Jan. 17, 1995 through December 21, 2000, which means he was in office for the 74th (1995), 75th (1997), and 76th (1999) Legislatures. (In Texas, our Legislature meets every other year.)
One can search Texas legislation for these periods online for free at Texas Lesgislature Online. From my searches in this database, I find the following legislation regarding Tex. Penal Code 26.01 (homosexual conduct) during the relevant period:
--No legislative efforts to repeal in the 74th Legislature;
--House Bill 1329 seeking repeal filed in the 75th Legislature; however, it never seems to have made it out of committee;
--House Bill 337 seeking repeal filed in the 76th Legislature; however, it too never seems to have made it out of committee.
Also, a listing of bills vetoed by the Governer is produced each legislative session. Here are the listings for the 75th Legislature and 76th Leglislature, the two sessions in which bills were filed regarding Section 21.06. Neither one reveals a veto having to do with legislation about homosexual conduct.
It's always possible that my research has been imperfect. But I also could not seem to locate any online media coverage of a legislative repeal and veto during Bush's tenure as Governor either, though he apparently was on record as vowing to veto any such repeal. So if you have any sources that document a legislative repeal and veto, please let me know.
As a sidenote, it is perhaps telling that Texas still has not repealed Section 21.06. The most recent effort to do so was in 2007 (House Bill 1326 filed in the 80th Legislature). As near as I can tell, this effort also never made it out of committee. So even several years after Lawrence, Texas seems less than interested in repealing its homosexual sodomy law.
Except for those of us, like myself, who would be lying if we did that, since we believe the codification into law and enforcement by the machinery of the state to be not an original source of immorality, but a compounding of the immorality inherent to those "traditional values".
I'll be honest: I've always looked at Scalia's predictions and wondered what's supposed to be bad about most of them. Sexual immorality, in my mind, only comes in two forms: compelling someone to do something they don't want to do (in a word, rape), and prohibiting someone from doing something they do want to do (all the laws whose overdue elimination Scalia was lamenting).
Oh, and Pendulum, are you a judge? Please tell me you're a judge, that would make me happy.
There are those who feel that certain activities should be beyond the reach of government and that it is immoral for government to regulate them. Those who believe this are entitled to preach and teach their opinions and perhaps can get others to accept them. But unelected judges to force their personal ideas of what is and isn't moral down our throats. We are used to opinions consisting of nothing more than sermons in which judges preach their notions of how they think a moral government should be. The whole concept of privacy is a moral idea, plain and simple, nothing more. Judges should not use their offices to shove their own personal notions of morality down our throats, and morality a basis for judicial interference in other people's lives.
There are those who feel that certain activities should be beyond the reach of government and that it is immoral for government to regulate them. Those who believe this are entitled to preach and teach their opinions and perhaps can get others to accept them. But we deal here with a case of unelected judges deciding cases based on nothing more than their own ideas of morality, forcing their personal ideas of what is and isn't moral down our throats. The whole concept of privacy is a moral idea, plain and simple, nothing more. Judges should not use their offices to impose a personal moral agenda, and their personal ideas of morality should not be a basis for judicial interference in other people's lives.
In Atlanta Motel, the Supreme Court upheld morality as a basis for interstate commerce legisislation, citing a long history of congressional enforcement of morality in interstate commerce, including laws against gambling, prostitution, and racial discrimination.
I don't ascribe any particular morality to the government attempting to interfere with my sex life, I just think it's a violation of the basic social contract of ordered liberty.
Again, it's not a question of whether sex-toys are moral or not - the courts need not take any position whatsoever on that. The salient question is whether or not the government, in a system where we have a presumption of liberty, can regulate them.
Same with the concept of free speech, or the right to keep and bear arms, the right to raise your children as you see fit, the right to associate with any religion you see fit. These morals concepts form the basis of a government system of limited power.
Neither should the legislature be allowed to violate the fundamental rights of the people in violation of the social contract.
Furthermore, isn't your last sentence just a little bit ironic? I can think of no more egregious form of interference in people's lives than criminalizing private intimate acts that lie completely outside the purview of government.
Ah. I regard that as an active immorality.
I lack your optimism that anything short of dispatching the adherents of such ridiculous "values" into the dustbin of history will prevent the body politic from attempting to enforce such by legislation and your neighbor from breaking your leg in an effort to make you comply.
ReaderY, you've got it backwards. The burden of proof is never upon that position, the burden of proof is upon those who believe that an activity falls within the legitimate reach of government to prove such. They're who are "entitled to preach and teach their opinions and perhaps can get others to accept them", which is really being generous. After all, as so rightly pointed out re: the 2nd Amendment, if something falls outside the legitimate reach of government and it's immoral for government to regulate it, those who recognize that are entitled to use force of arms.
Look: I think the vibrator law is stupid. I think Idaho Code 18-6603 is stupid ("crime against nature" which bans not only animal sex, but oral and anal sex). But the state legislatures had authority in 1791, and 1868, to regulate morality in what they thought of as the public good.
Were these laws seldom enforced? Sure. Unless you did these things in public, the chances that anyone besides your intimate partner would know, and thus prosecute you, were very slim. Just because a law is stupid doesn't make it unconstitutional--or lots of laws would be in trouble.
Is it wise to have laws on the books that are widely violated and hard to enforce? Probably not. But there is a widely held belief out there that some things, by being treated as shameful, tend to stay a bit in the shadows. Sex with animals is unlawful in lots of states (although post-Lawrence, I don't see how). There are few prosecutions for it, and when you see news coverage of it, it is usually because someone was phenomenonally dumb. But guess what: most Americans want laws against sex with animals because it is a zero-cost way of expressing revulsion at a disgusting and immoral practice.
If you don't like this, perhaps you need you pick a new electorate, or abandon completely the pretense that the voters have any authority to pass laws.
Where there is a clearly stated constitutional protection, sure, the power of the people is restricted (for example, the 2nd Amendment, or freedom of speech). But where there is no clear statement that the government's power is limited, the presumption has historically been in favor of the people--as it should well be.
Libertarians try to imagine that the U.S. Constitution was a libertarian document. It was not. It limited federal power, true, but left most other authority to the states, where the limits of that power were limited only by state constitutions, and subsequent amendments to the U.S. Constitution.
There's only one little problem: your perspective on this is a minority viewpoint in America.
Which includes what? Now, I agree with you that when Rep. Bingham listed the privileges and immunities that the 14th Amendment imposed on the states by reading the first eight amendments, he probably did not mean that these were the only such rights. But how do you figure out which rights those are?
Did it include the right to have sex with animals? Probably not. Criminal offense in 1868; if that was Congressional intent, why didn't anyone notice that?
Did it include the right to have sex toys? Good question. What laws were there about such items at the time?
Did it include the right to have homosexual sex? Clearly not; that was a criminal matter in every state in 1868.
In the case of Texas, only homosexual sodomy was prohibited after 1974. They repealed the previous "crime against nature" statute, and created a law that affected only homosexuals. So pretty clearly, the "public consensus" had evaporated about oral sex between husband and wife, and even unmarried straight couples in Texas decades before Lawrence.
Except to the extent that having something unlawful, even if seldom enforced, acts as a restraint on public advertising, and makes contracts involving that unlawful behavior or product unenforceable.
There are certainly aspects to widespread public immorality that can make a place unpleasant to live. For example, everywhere you go in Riverside County, California, there seems to be billboards advertising topless/bottomless places. I suppose for people that never outgrew being 14, this is a fine thing. I'm not particularly interested in living in a place like that, however, and in some parts of the U.S., that isn't just a dominant view--it is an overwhelming view.
Clayton, without belaboring the point, you know that I think that the State of the Union in 1868 has shit-all to do with the meaning of the 14A today. Continuing to insist that it intended to freeze the evolution of Constitutional Law and define, for all time, what constitutes our privileges and immunities makes about as much sense to me as forcing a man to wear his childhood cloths (apologies to Thomas Jefferson for stealing his analogy).
Contracts for sodomy are illegal prostitution. As far as dildoes are concerned, I suppose some unscrupulous Texan could order a large number on credit and then bail. Other than that, what does the ban accomplish (see below for my support of public advertising regulation).
I recall explicitly supporting the right of localities to regulate outdoor advertising. If the majority of Riverside wants to ban billboards for adult clubs, that's perfectly dandy with me.
I should really hope he didn't mean just those first eight amendments, at least for the sake of Madison that was terrified that a list of rights could become a warrant for violation of rights-not-mentioned. Had Madison known that the bill-of-rights would be incorporated as a bar on state action but without the 9th, that is susceptible to expressio unius, I don't think he would have passed them at all.
As to figuring out the contours, there is ample caselaw (not any of it that you have particular respect for, I'm afraid) that demonstrates how one can proceed. A good place to start is whether right in question is "implicit in the concept of ordered liberty". Another place to start is whether the law in question interposes the government into the sphere of a man's personal life - i.e. whether the government seeks to control matters entirely outside its purview.
Now, I realize from our previous discussion (e.g. the red shirt) that you have no conception of a limit to the government purview. I'm not under any illusions that I can convince you otherwise but I mention it to put the largest possible contrast between myself and your notion of unlimited government power to interfere in my personal life.
Consider Kennedy's (bleeding heart liberal that he is) conception of the liberty protected by the US Constitution:
methods).
Later on, some of them rebel at the notion, chafing that they should have to relinquish their purported power, as the majority, to dictate which color shirts are allowed. Some of them even accuse their opponents of being anti-democratic for sticking up for the original agreement: a government instituted among men for the preservation of our rights.
2. In either case, why wouldn't it be? Lawrence effectively says that laws must be based on something other than morality. What are laws against animal cruelty other than morals legislation?
Second, as Scalia points out, it is not people like Clayton trying to freeze the law, but people such as yourself. When the Supreme Court holds that a particular behavior is constitutionally protected, that constitutes an attempt to "define for all time what constitutes our privileges and immunities." Passing laws through the legislature doesn't define anything for all time. To actually quote Scalia:
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break... "[Proponents of living constitutionalism] are not looking for legal flexibility, they are looking for rigidity, whether it's the right to abortion or the right to homosexual activity, they want that right to be embedded from coast to coast and to be unchangeable."
There are lots of criticisms one can make of Clayton's position, but trotting out the notion that you're in favor of change and he isn't is not a valid criticism.
Secondly, the Constitution evolves because there are terms in it that are not defined with respect to 1776 or 1868 but as general references. As the referents of those terms changes, so to does our understanding of the Constitution. For example, "cruel and unusual" comes to mind - it doesn't ban what was cruel and unusual in 1776, it bans what is cruel and unusual now. Similarly, the liberty protected by the 5th,9th and 14th amendments refer to liberty today, not liberty yesterday or yesteryear or yestercentury.
Third up, I'm quite a fan of the fact that, when the Supreme Court holds that a particular behavior is Constitutionally protected, it remains so indefinitely. The list of protected freedoms should be growing, not shrinking -- the less of my personal life that comes under the government's purview, the better.
Why isn't a protected right under the 14th Amendment? Because liberals decided a long time ago that flag burning and porn is protected free speech--but commercial advertising and political speech (at least for McCain-Feingold) is not. So you are now admitting that there is no "presumption of liberty" except for the stuff that you like.
Others have already pointed out that your claim about "evolution" is wrong. I'll just point out that the original understanding of the 14th Amendment doesn't specify something then it just means whatever a majority of the U.S. Supreme Court decides it means. At the same time that a majority matters on the Court, what a majority of Congress or a majority of a state legislature or even a majority of the population of a state thinks it is protected doesn't mean anything. This is just another excuse for unelected elites to decide what the laws should be.
Great theory. But there is simply no evidence of any original understanding of the federal constitution, or the 14th Amendment, that set up this system. If the 14th Amendment did this, why is that there was no 14th Amendment challenge to abortion laws, sodomy laws, etc. until almost a century after ratification? Those laws were on the books; no one seems to have noticed this meaning that you claim.
By the way, there were challenges to state laws discriminating against women under the 14th Amendment's equal protection clause almost immediately. A woman in one of the states of Old Northwest challenged a state law limiting lawyers to men, and I believe the Supreme Court decided that case around 1872.
That having been said, this does not comport with your previous statement, that "the liberty protected by the 5th,9th and 14th amendments refer to liberty today, not liberty yesterday or yesteryear or yestercentury." The entire purpose of constitutionally protecting abortion or homosexuality or contraception is to ensure that the liberty protected by these amendments refers to liberty at the time the Court spoke, not "liberty today."
The problem is, you mistakenly assume that the Court's decisions can only go in favor of increasing liberty. But the Court is capable of reading liberty out of the Constitution -- witness the dismantling of economic liberty under FDR.
That's a public policy preference, and one that I don't strongly disagree with (as long as it is consistently applied, which liberals are incapable of doing)--but that's not what the Constitution specifies is the nature of our government.
And on what basis is homosexual sex a "fundamental liberty interest" while sex with animals isn't?
Is it based on the traditions of American society? No. The Court in Lawrence actually falsified history to claim that laws aimed specifically at homosexual sex were recent additions to our laws.
Is it based on some original understanding that the 14th Amendment would prevent states from punishing homosexuality? Nope. You won't find anyone on either side of the 14th Amendment debates arguing that it would prevent enforcement of the "crime against nature" laws.
It is based simply on the preferences of members of the Court that they don't think that there should be laws like that. Imagine what you reaction would be if the Court decided, with the same basis in law, that California's decision to repeal its sodomy law in 1975, violated the "liberty interest" that conservative Californians had in living in a state where homosexuality was unlawful. It would have just as much validity in law and history as your fantasy.
Do you really think that government power in the public sphere ought to be commensurate to its intrusion in private life or was that a rhetorical tool?
[FWIW, I'm not a huge fan of BICRA or some of the excesses of the New Deal - economic liberty is protected as much as personal liberty is protected. In both cases, the government needs to make the case that laws infringing on those spheres serve a legitimate government interest will further that interest.]
I never said that it doesn't mean anything. It means precisely what it says - that our right to liberty is protected from the states (paraphrased). The contours of that liberty may grow but the meaning of the 14A stays fixed. By analogy, suppose that in 1868 some tycoon dies and sets up a charitable trust for the promotion of the music and arts. You wouldn't consider that spending the trust's money on, say, Jackson Pollock or Mason Williams to be violation since, "music and arts" in the 1868 did not contemplate modern art and music. It is understood that those words change with time and I see no reason why "liberty" should be the only one frozen in time.
Decided incorrectly, it would seem. Hard to tell without a citation but, assuming the facts as you state them, it's hard to see what possible legitimate state goal is furthered by such a law. Do you think historic support for such mindless bigotry actually makes your case stronger??
See my (4.7.2008 2:24am) post quoting Justice McReynolds for a good idea on where to start on understanding that question. That was the basis for Society of Sisters, the case establishing the right to send you children to private school - not a traditionally liberal cause. Even worse, the "right to parent your children as you see fit" isn't in the Constitution so, if it's going to be protected, you either need to find it in a broader conception of liberty or go without.
I'm quite certain you don't believe that. Liberty presupposes the right to do things that the majority disfavors: be a Catholic (at the time of the founding, quite disfavored), assembly freely, keep and bear arms, refuse to quarter troops. . . We can disagree about the scope and contours of the liberty protected by the Constitution but I hope that we agree that, whatever the core of liberty is, it's off-limits to the legislature.
This is really quite a theory of liberty you are advancing there. There's negative liberty, positive liberty (and its cousin, active liberty) and now this: positive-anti-negative-liberty, the right to have something forbidden. Please elaborate on this new and wonderful form of liberty in which people are made more free by having more restrictions put on them.
Even more interesting, actually, is the purported injury that you think a conservative has suffered by living in a state that allows sodomy. Unless sodomy is mandatory (probably not), I don't see how it either picks his pocket or breaks his leg. Contrast this with Lawrence in which the sodomite is threatened with having the police come crashing through the doors of his castle when he was harming no one, and I think the theory of PAN-liberty becomes even more ridiculous.
The problem here is that laws against racial discrimination could be equally said to "violate the social contract of ordered liberty"; they implement the religious ideas of a Christian reverend, one Rev. King, that racial and sexual associational preference is "sinful," and they prohibit people from expressing their own idiosyncratic gestalt of personal identity through their personal preferences and vocational associations. There are, after all, many people, however misguided, who regard their vocations as deeply meaningful and even as sources of their personal identity.
Now, you and the Supreme Court may well believe these people are wrong and evil and sinful, and that expressions of personal identity and the types of idiosyncratic personal preferences that go with such expressions shouuld be limited to sexual activity. Of course you're entitled to believe that, and you may be right. But why should you and the Supreme Court have the right to tell people that sexual activity is the only proper way to express their sense of self? Why should violating one person's need for personal self-expression be acceptable, and another person's be regarded as a "violation of the social contract of ordered liberty." Why should your and the Court's morality be the one that decides?
Why shouldn't people's job choices be based purely on their private happiness? Why the idiosyncratic decisions about what kinds of choices are "fundamental" to people be made by courts rather than people? Many people don't order there lives in a way that makes sex the most important thing. Why should their way of ordering their liberty be disrespected and yours prevail?
Having lived both where such ads are prevalent and where neither they, nor the establishments they advertise, exist, I find the absence more disturbing. Like the brothels in Nevada: I've never set foot in one and like as not never will, but I'm glad they're there and would fight any effort to get rid of them.
Disgusting, yes. Immoral, not at all. Deserving to be banned, only if the cruelty-to-animals rationale's convincing. Anyway, I do believe I've voiced my support for both those suggestions you give on how to deal with the situation. Fairly certain of it, actually.
Setting aside what I think of Barron v. Baltimore and the proposition that the limitations on the national government weren't limitations on the state governments the same way limitations on a state government are limitations on county and city governments,
1) Isn't sex part of the realm of civil liberties?
2) Why should the presumption be in favor of the sovereignty of the people over the person, rather than the person over the self?
Incidentally, I don't believe, as a general matter, that very many people are either wrong, evil or sinful. One does need to be any of those three in order to conclude that your preference for a white coworker ought to be disallowed by law. It's not a moral judgment, it's a judgment about the social disutility of having pervasive occupational discrimination against an entire class of people. Such widespread underutilization of labor is detrimental to the entire county - it quite literally makes us all poorer.
In my mind, this almost the exact opposite of consensual homosexual sodomy where there is no social disutility but the arguments against it are cast in moralizing tones.
FWIW, I believe, in addition to the presumption of liberty, in the presumption towards free markets. The utilitarian benefits of free markets are very often better than in the case of market regulation. However, in cases where that presumption has been strongly rebutted by a continuing and obvious market failure, the government should step in (by definition, anyway).
If society can rationally declare a right to enter into one kind of relationship, it can rationally declare a right to enter into the other. If it can declare that the purpose and effect of vocational homosexual preference is to denigrate other people's equality amd forbid it outright without requiring any proof of individual motive, it could equally declare the same of domestic homosexuality.
It's been a long time since the Athenian society described in The Reign of The Phallus -- a world where homosexuality led to a caste system in which women became things used only for procreation and pleasure. So long that we don't automatically associate domestic homosexuality with putting the opposite sex down or depriving others of liberty in the way we do with domestic society, whose association with a caste system has been more recent.
Perhaps in a few hundred years people will forget the original purpose of our anti-vocational-preference laws, and the perhaps small percentage of people who genuinely feel more comfortable and productive working with members of the same sex will complain about society automatically associating them with evils like depriving others of equal opportunity. Such societal associations, which we today (and you) simply take for granted and don't think to question, may someday come to seem irrational, even rediculous, and it may come to seem unfair that society is forcing a small percentage of people into ways of life that simply don't work for them out of societal considerations that bear no relationship to the contemporary situation and seem nothing more than prejudice and animosity.
But that day came, I would still say that it would be for the legislature to repeal the civil rights laws, declare a right for people to work with whom they choose, even outlaw prejudice and discrimination against people on the basis of vocational sexual preference. It would not be the court, because once we acknowledge it is rational for civil rights laws to exist today, it would still be rational even in a distant future completely changed society for a legislature to continue such laws as a prophylactic to ensure that today's situation doesn't happen again. The fire department and its inspections don't become irrational just because there haven't been fires in a long time, and repairing the dam doesn't become irrational just because there hasn't been a flood, even if it hasn't rained in centuries and we now live in a desert. It's up to the people to decide whether the situation has genuinely changed, or whether we'd be better off to continue the old safeguards and put up with their inconveniences just in case. It's a line drawing exercise in which either call is rational, no-one can know for certain, and it is simply hubris to claim that one has the only possible answer.
Heterosexual sexual morals tend to be of great service to societies living in extremely harsh conditions. We haven't lived in such conditions in a long time, and it has been even longer since we've has a society in which almost all the men were gay and a domestic-life caste resulted in much the same way as our recent experience with an employment-based caste system. Social condemnation of both kinds of associational exclusivities may eventually prove to be anomalies, artifacts of particular social conditions which may never arise again. But they may. We simply don't know. And because we don't know, because both kinds of rules are rational under some set of plausible social conditions which existed in the past and might conceivably recur in the future, they are rational today, matters for legislatures and not courts.
The kind of society described in The Reign of the Phallus is more than two millenia away from us, while Jim Crow is less than two generations. But the length of time simply doesn't matter. It doesn't make what was once rational irrational.
[Forward2: I had to divide up my response because you touched on three radically different points]
I. The Utility of Vocational vs Domestic Bigotry
Vocational underutilization is objectively inefficient, whereas it is logically impossible to have inefficient under-utilization of domestic relationships. This critical difference merits the intervention of the government in the former but not the latter (of course, not every government intervention in the former is acceptable and not every government regulation in the latter is unacceptable).
To be more clear: the utility of domestic relationships specific to the mutual affection that the partners have for each other: one enters in a relationship specifically to be in that relationship. In a vocational relationship, however, the utility is largely external: one creates widgets because they fulfill an unmet want in the economy at large. That's not to say that one doesn't derive satisfaction (a form of utility) from making widgets but rather that, if they did not fill an unmet want, they would be recreational not vocational (i.e. the difference between a hobby and a job).
Society has an interest in keeping the economy producing the wants in an efficient manner (that's why we spend all this money on judges to enforce contract law) AND in keeping domestic relationships maximally satisfied. The key difference, of course, is that a homosexual that is denied the right to enter in a relationship with another homosexual is "lost" to the system - he has no desire (and therefore cannot) enter into another utility-producing personal relationship (he may enter into a heterosexual sham marriage, to the detriment of himself, his wife and any of his children - quite a bit of disutility if you ask me).
The vocational homosexual, however, will still produce widgets regardless of the company around him because, as I explained earlier, the purpose of his widget-making is not his own satisfaction (that would be a hobby, not a vocation) but the creation of widgets that people want to buy. Furthermore, society has an interest in keeping the widget-economy rolling - it is justified in policies (that are not too extreme, there's always a balance!) that lead to an efficient distribution of widget-makers in their best possible configuration. It makes just as little sense to have inferior widget makers working together because they enjoy each other's company than to force people that do not enjoy each other's company to be in domestic relationships.
This is a much lesser evil that forcing a large percentage (say, 50% or so) into ways of life that don't work for them out of societal considerations that bear no relationship to their particular skills and desires. From the utilitarian point of view it's a slam dunk - put the best person for the job in each position and let the malcontents quit.
Irrelevant. Whether or not that sentiment is genuine and without malice, it still has the effect of depriving others of equal opportunity. Good intentions do not make good results. [FWIW, and I explicitly mentioned this earlier and will do so again, I don't consider most discrimination to a bad idea because it's morally wrong. It's bad because it's an inefficient allocation of society resources and therefore makes us all objectively poorer, irrespective of motivation.]
That's rich! We must outlaw invidious discrimination against those demand the right to discriminate invidiously! According to your logic, we should outlaw discrimination against people on the basis that they discriminate against people that discriminate against others on the basis of sexual preferences (e.g. people like me that refuse to allow invidious discrimination should be protected from people like you that discriminate against my refusal to accept discrimination). Then we should outlaw discrimination against that!
Since this infinite regression leads to no particular insights that I can see, I propose that we adopt a simple reversibility test ('veil of ignorance', if you want to call it something fancy): We will not allow people to claim rights that would, in turn, deprive others of their rights. That's a roundabout way to saying that the assignments of rights must be reversible. Vocational homosexuals cannot then claim the right to exclude others from making widgets without exclusion (for obvious reasons).
Note that relationship homosexuals do not have this problem since they do not seek to exclude anyone from a position they would willingly take - straight women simply do not want to be in sexual relationships with gay men because there is no utility (for either) in such a relationship. This assume that nobody enjoys being with someone that doesn't enjoy being with him (an eminently fair assumption).
II. Utilitarian arguments for the immorality of homosexuality
Impossible by definition. The utility of domestic relationships accrues solely to the partners - society cannot have any interest nor can it gain any utility by forcing together unwilling partners or tearing asunder willing partners.
You might be (I think you are, actually) referring to sexual morals that are only coincidentally attributed to heterosexuality: fidelity, honesty and commitment. These values were attached to hetero relationships only because those relationships were the only ones that society presupposed were valuable. In reality, those values can be assigned to relationships of either orientation without diminishing their value at all. The social benefits of having a faithful and committed couple fairly obviously accrue regardless of their gender.
In fact, I would argue that increased social acceptance of gays into institutions (civil unions) that promote the sort of positive sexual values that are societally beneficial would be particularly useful in this regard. We certainly cannot condemn adultery while simultaneously refusing to acknowledge their relationships as legitimate (both socially and legally). The particular and insidious form of devaluation that you assign to homosexual relationships only encourages societal disrespect and therefore destroys the morals you seek to encourage (it's perfectly rational for gays to conclude that, if society doesn't recognize their prerogatives, they ought not to recognize society's).
III. Novel Theories as the Role of the Courts
With all honesty, this seems quite bizarre to me. In a situation where the State seeks to abridge the fundamental liberty interests of its citizens without legitimate cause the Courts have a duty to protect that liberty. If the facts that justify a particular abridgment cease to be true, the law must then fall.
Simply because this is a fact-based-inquiry (which almost all Constitutional inquiries are) and that those facts may indeed change (also almost always the case) does not allow the Court to stand idly by while liberties are being violated. In fact, quite the opposite, the Court should make very clear what the balancing test in question is and how the lower courts should apply that test if the facts change.