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When “doom” appears in a headline these days, you know that we’re either talking about the Gulf — or an overheated political argument. The Washington Post‘s Jonathan Capehart, who I would call an amiable acquaintance, went with the latter this morning, in “Could impending Prop 8 decision doom same-sex marriage?“
In writing about marriage and the Proposition 8 case currently being considered by U.S. District Judge Vaughn Walker, Capehart overshoots with his otherwise legitimate concerns — concerns which he is not alone in holding. Capehart writes about the evolution of sodomy laws in the U.S. from the Supreme Court 1986 case of Bowers v. Hardwick, in which the court upheld Georgia’s sodomy law, to 2003’s Lawrence v. Texas, which struck down Tesas’s sodomy law. He writes that “the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples.”
In doing so, however, Capehart misses the key passage in Lawrence from Justice Anthony Kennedy’s majority opinion:
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).
Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The Supreme Court, Kennedy acknowledged, was not correct to uphold Georgia’s sodomy even when it did so because it was wrong, under the U.S. Constitution, to uphold Georgia’s sodomy law — regardless of what the voters or lawmakers of Georgia thought.
That is not, of course, a decision in this matter, but it is a sign that Justice Kennedy, whose vote on the current court likely would be key to any marriage ruling, does not believe that some magic number of states need to support a right before the Constitution should be seen as protecting it.
So, despite Capehart’s gloom and doom about what the current state of marriage equality in this country could mean for the aftermath of the Proposition 8 case — I do not share his secondary concern about the possibility of a constitutional amendment in the wake of a decision striking down Proposition 8 — Justice Kennedy himself, in 2003, gave some insight as to his answer to Capehart’s primary concern.
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