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[NFR: Because as Scalia said, if the state doesn’t have the right in principle to regulate morals, there would be no morals laws (e.g., against prostitution). But just because something is immoral doesn’t mean it should also be illegal. — RD]
I don’t think this is either correct either as a general position or w/r/t the specific example you use. With respect to sex work, a bunch of countries and jurisdictions have in fact legalized it or liberalized their prostitution laws in the last couple decades, but other countries have passed new legislation outlawing it (e.g. Sweden and Norway last decade, and France and Ireland in the last couple years). In 2013 for example you had an article here lamenting a decision of the Canadian Supreme Court regarding prostitution, and I think you expressed the opinion that in the wake of Lawrence laws against prostitution are destined to fall. In fact exactly the opposite happened: the Conservatives pushed through a ban on prostitution that actually made the laws tougher than they were before. That law is from what I can tell unpopular and probably won’t last all that long, and I think the long term trend in public opinion is towards legalization of prostitution, but there’s certainly nothing inevitable about it. In some other regards (e.g. the recent kerfuffle about ‘affirmative consent’ laws and the proposal to replace it by some asinine concept of ‘enthusiastic consent’) our country is getting more puritanical.
What Scalia said is, on its face, correct, if you view the law as a set of mathematical formalisms that logically follow from and depend on each other: “he who says A, must soon say B.” What I think you’re missing is that isn’t how the law works. The law codifies the normative preferences of political elites, as far as I can tell: there’s nothing much more to it beyond that. The reason we have gay marriage today is because a critical mass of the American people, and more importantly a critical mass of the circles of people who serve as lawyers, judges, politicians, etc. became convinced that homosexuality was morally unobjectionable and that gay marriage made sense. They haven’t come to such a conclusion about prostitution, or polygamy, or open marriages, or any of these other things, which is why those things aren’t accepted under our social and legal environment as yet. I don’t think this is a good thing- I would favour a much more libertarian approach to issues like polygamy, open marriage, sex work, etc.- but it is definitely a thing. What’s happened in places like America, Sweden, etc. isn’t the retreat of normative moral preference from the sexual arena, it’s the replacement of one set of sexual morals with another set.
Lawrence notwithstanding, anyone who wants prostitution, or polygamy, or moderately intoxicated sex, or open marriages, whatever else to be illegal can simply make an argument that these things are bad for society, or exploit women, or aren’t truthfully consensual, or whatever else. I think those arguments are all spurious, but I think they show something really interesting which is that even if we have a judicial norm that says “no morals legislation in matters of sex”, people who really want to outlaw something will find lots of ways to easily get around it. They’ll just concoct reasons (often really bad ones) why there are legitimate harm-based reasons for their particular pet peeve to be outlawed.
Well now you are contradicting yourself for having at once dismissed Justice O’Connor’s concurring opinion you are now employing the rationale that would sustain it. Same-sex couples who engage in anal sex are either similarly situated to opposite-sex couples who engage in anal sex or they are not.
Now, with respect to the Court’s decision-making process, you are correct that the Court decided Lawrence on substantial liberty grounds under the Due Process Clause. However, the Court did not dismiss the Equal Protection argument as out of hand and a thorough reading of the Court’s opinion would show that their stated concern was that O’Connor’s equality argument did too little to address the equality concerns of those gay people living in the other states.
O’Connor’s concurrence was “tenable” but it did not do enough to overcome the burdens of those living in states that did not have a Homosexual Conduct law (only four of the states with “sodomy laws” singled out same-sex partners for disparate treatment.)
Gays living in states that have enacted sidomy laws that are neutral on their face would still be treated as presumed unindicted criminals since the only sex they would normally engage in was criminalizes whereas straight people who engaged in that activity would not be treated that way because one could pretend that they were only engaging in the procreative sexual acts.
Moreover the court noted that a police officer may still choose to enforce the law more rigorously against gay couples than it would against straight couples.
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