0) Boundary conditions: Just to be clear about what's not at issue,1 we're addressing:
a) state law;1) Relevance of religious views: Boomr properly concedes that some laws -- including criminal laws -- based on religious views are Constitutional, so long as they advance a legitimate state interest. This is part of the "rational basis test," and I fully agree. So the dispute narrows to defining the legitimate and rational.
b) assuming the validity of "incorporation" (the notion that the due process clause of the 14th Amendment made the Bill of Rights applicable to the states);
c) having no bearing on "what to think" (Cindy's got a right to speak, and I have the right to mute my TV) but aimed at conduct; and
d) laws OTHER THAN THOSE:-- limiting a citizen's free exercise of religion in any non-neutral, more than incidental, fashion,
-- establishing a state religion (and, strictly for this debate, any non-neutrality backed by state compulsion; let's leave coercion, or lack thereof, for another day), or
-- whose legislative history makes clear that a clear majority of legislators agreed that its effect and intent was either or the above and were attempting sham 1st Amendment legality.
At this juncture, boomr employs the criminalization of private and consensual homosexuality as an example of the illegitimate and irrational. And, of course, the Lawrence Supreme Court agrees, based on its creation, then expansion, of a Constitutional right to privacy. I would decide differently, and for reasons UNRELATED to religion. Cross my heart and hope to die.2 I understand that boomr neither recognizes nor credits such a non-religious interest. But suppose for a second that I'm sincere. Why is it unconstitutional just because Boomr can't see it but I can? (Again, don't try to persuade me I'm wrong; tell me why my view -- or the view of the majority -- must be squelched.)
Of course, one could reply: "because the Court said so." But that's stare decisis, not reasoned debate. That view would freeze every doctrine, good or bad, even if it permitted criminalized homosexuality. That's what happens when one invents non-textual rights--a multiplicity of views, none of which can be assessed much less validated by examining the Constitution's language. So, moving on, let's address the non-religious.
2) Morals-based legislation. As boomr says, "Morality and religion are both very personal concepts." But only religion is addressed in the Constitution. Boomr, can you at least acknowledge that?
Moving to another example, consider adultery, which boomr addresses in point 3. He acknowledges adultery involves a third party, which may be negatively affected by the conduct. Even assuming Lawrence correctly decided, on what basis is criminalizing adultery unconstitutional? It is "geared solely towards the protection of the citizens and the land within our borders." (Again, I stress, the issue isn't whether adultery prosecutions are silly or a waste of money--the Constitution does not forbid the dumb or inefficient.) Why is it forbidden for the legislature to act to deter and punish such conduct? What, exactly, is unreasonable or illegitimate about protecting citizens? Does it matter if the people support the proposed law? If the state surveyed its citizens and found that 75 percent of cuckolds were hurt by their spouse's conduct? Or 51 percent? Or even 35 percent? This, I emphasize, is a utilitarian rationale and interest ENTIRELY apart from religion: it's about preventing hurt. Why isn't a legislative finding that adultery, say, has been shown to wreck marriages and retard the development of the offspring of cuckolds sufficient? Think of children, boomr: they're our future; we owe it to them.
All 50 states criminalize fraud. But fraud occurs in the context of a private contractual relationship between two individuals, one of which is hurt. Are fraud laws Constitutional except where the fraud occurs inside someone's house; does the right to privacy extend that far? And if so, how would boomr distinguish adultery? Again, I emphasize that a law may be stupid, silly, or old-fashioned--but nonetheless be rational and targeted toward a legitimate state interest. One favorite example is Kotch v. Board of River Port Pilot Com'rs, 330 U.S. 552 (1947), which upheld a state law instituting nepotism for river boat pilots:
We can only assume that the Louisiana legislature weighed the obvious possibility of evil against whatever useful function a closely knit pilotage system may serve. Thus the advantages of early experience under friendly supervision in the locality of the pilot's training, the benefits to morale and esprit de corps which family and neighborly tradition might contribute, the close association in which pilots must work and live in their pilot communities and on the water, and the discipline and regulation which is imposed to assure the State competent pilot service after appointment, might have prompted the legislature to permit Louisiana pilot officers to select those which whom they would serve.Stupid and inefficient, yes. Illegal under various subsequent anti-discrimination laws, maybe. Unconstitutional, no. Or is stare decisis limited to civil rights not actually in the Constitution?
One common thread here is the scope of state power. Unlike the Feds, state police power is not tied to any particular authorization in the U.S. Constitution (that's the meaning of the 10th Amendment). Put differently, a state is sovereign, and may do anything except where prohibited or preempted by the Constitution. There's nothing about morals or adultery there, so states can act as they choose; the states need not be uniform. I disagree with boomr and MaxedOutMama about criminalizing adultery. Fine. I don't doubt boomr "truly do[es] think that morality-based legislation would end up compromising a number of rights granted by the Bill of Rights." Ok, good for him; depending on the specific law at issue, I might disagree. But why does the Constitution forbid a state from codifying my view? What prohibits states from legislating the moral, not the religious? It doesn't and nothing, so the default is majority rule. Indeed, why does the legislature need to take some survey at all--that's why they hold hearings? Remember, they're our elected representatives, and we can un-elect them next November.
And now for the elephant in the room: polygamy. Is the widespread criminalization of polygamy moral? Is it Constitutional? Well, the Supreme Court said it was both (and religious too!). Reynolds v. United States, 98 U.S. 145 (1878). Can boomr, does boomr, distinguish the criminalization of sodomy or adultery with that of adult polygamy? How? Does it matter that all in the marriage consent? And what about adult insect? If unconstitutional, could a state authorize insect on the utilitarian condition that the men get vasectomies? Or must a state await "[t]hree generations of imbeciles"?
3) The judiciary as a wise shortcut: This has two aspects. The first is boomr's willingness to substitute his judgment for that of the legislature. We all have different morals, different public policy goals, etc. Why must judges use his? Or mine? If not prohibited in the Constitution, what makes either view "right?" If expressing a valid syllogism, how can judges overturn state law--even were they to disagree? Example: adultery hurts children, therefore we criminalize it. Boomr disputes. But he would acknowledge that the logic is valid, even while disputing the premise. The judiciary's role in interpreting the law under rational basis scrutiny is essentially confined to logic, not wisdom. And, as shown below, boomr's view of logic also distorts his arguments.
The second problem is apparent in boomr's warning:
If we legislate morality based upon the prevailing whims of the voting populace, there will be no true lasting standards applicable to our laws. While every Constitutional right has gone through a period of evolution, that evolution has at virtually every single step resulted in the increased application of rights to society. Allowing legislation to be passed every election cycle would result in a mish-mosh of rights being restricted in one era and expanded in another, with no bright-line rules created. It would, in essence, give us voting-based entropy, large swings in the supposed "national" morality in short amounts of time.Boomr favors more civil rights. Good for him. But, our representative democracy is supposed to reflect the views of the people--and those views change. As I understand it, the living Constitution is supposed to speed up change. Has boomr become an originalist? Moreover, what's wrong with (whatever it means) "voting-based entropy." Where does the Constitution prohibit change? Or even entropy, something more relevant to the laws of thermodynamics than the law of America.
Boomr's bias toward expanding rights is a political viewpoint, not part of the Constitution. Neither reduced nor static rights are unconstitutional if not prohibited by the Constitution. I note that we legislate economics, environmental protection, education, highway construction, etc., "upon the prevailing whims of the voting populace." I think mandatory recycling idiotic and inefficient. What's different here?
His argument also is consistently circular--our rights are specified in the Constitution. Boomr invents non-textual concepts, calls them "Constitutional," and demands they be protected--from the legislature and the people! Again, as before, the error is the assumption that boomr's view is a universal "right" requiring protection. Ironically, he condemns shifts in the law despite the fact that the swings are a product of allowing judges to invent, rather than interpret, laws.
Civil rights can and do change under an originalist interpretation:
The process worked well for a 150 years: as an example, though the 14th Amendment guaranteed every "person . . equal protection of the laws" and all "privileges and immunities" yet, that didn't authorize women to vote in Federal elections--because that was beyond the Amendment's scope and intent. So women's suffrage advocates campaigned and won support for the 19th Amendment--via the democratic process.If "equal protection" didn't give women the vote, how could it address modern dogmatic secularism? Unless, of course, secularism, like atheism, is itself a religion, in which case haven't you violated the Establishment clause? Boomr, if you want to forbid morals-based law, pass an amendment.
Conclusion: Boomr insists he is "not trying to "exclude" [my] view." I guess that's true in a narrow, technical sense. He would allow my advocacy--and then void my views as unreasonable and illegitimate. Which they would be if I mandated the Catholic catechism, widespread and uncontrolled searches, Bench-only criminal trials or prohibiting pistols in the District of Columbia (fooled ya!).
But I'm not. I'm supporting non-religious laws "geared solely towards the protection of the citizens and the land within our borders." Boomr doesn't share my morals. But neither the Constitutional language, nor boomr's expanding non-textual rights, give him the legal authority to enshrine his while forbidding mine.
Except via an election.
Seems likely boomr's response will be delayed.
1 Regarding selective prosecution, the limit is that the selection criteria cannot include rights guaranteed by the Constitution, e.g., race. Mere classification isn't unlawful. Cf. Kotch, 330 U.S. at 556 ("This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws."). The Constitution forbids only unconstitutional classifications, as a case you cited held. Oyler v. Boles, 368 U.S. 448, 456 (1962).
2 I agree with Justice Scalia:
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display >any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.