July 02, 2003

Proclivity vs. Orientation

Like Jeffrey Rosen, I think Justice O'Connor's concurring opinion in Lawrence vs. Texas is far more defensible that Justice Kennedy's majority opinion; the latter is rooted in a rather dubious tradition of privacy jurisprudence, begining with the "emanations and penumbras" of Griswold vs. Connecticut. (Rosen has previously written that another case in this tradition, Roe vs. Wade, gave the anti-abortion side a political advantage of never having to test their most extreme positions.) O'Connor's argument, which would have left in place the previous sodomy decision in Bowers vs. Hardwick, was based in the Fourteenth Amendment's equal protection guarantee rather than its Due Process clause; it would have left intact sodomy laws that, unlike the law in Texas, applied equally to both homosexual and heterosexual sodomy.

Justice Scalia's dissent responds to O'Connor's equal protection case:

Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save JUSTICE O'CONNOR, ante, at 1 (opinion concurring in judgment),embraces: On its face [the Texas law] applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, [the law] does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men,and women only with other women. But this cannot itself be a denial of equal protection...

JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is... its discrimination with regard to the sexual proclivity of the principal actor.

"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5.

Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely
correlated with being a nudist" and hence "is targeted at more than conduct"; it is "directed toward nudists as a class."

I'm skipping some things in Scalia's dissent regarding strict scrutiny vs. rational-basis scrutiny that I don't feel qualified to comment on. I'd like to focus, though, on the phrase "sexual proclivity."

A "proclivity" is an inclination or tendency; I don't think in connotes something so immutable as "sexual orientation," at least as I understand it. In most cases, certainly for men, heterosexuality (or homosexuality) is every bit as congenital as gender or race. It's absurd to suggest that nudism is comparable.

Once you accept the premise that sexual orientation is a congenital characteristic (and not, like nudism, an acquired preference), O'Connor's equal protection argument looks very strong, and well rooted in the Constitution's text. What a shame that five of our Justices prefer to wallow in the penumbras.

Posted by John Tabin at July 2, 2003 08:21 PM