You dont think that sodomy laws were unConstitutional?
No, I certainly do not. Lawrence is another one of the Court's substantive due process turkeys, just like Casey. In both cases, Justice Kennedy's opinion rigged the constitutional analysis to produce the desired result.
In Casey, the Court could not bring itself to overrule Roe v. Wade, so Kennedy et al. cooked up a disingenuous compromise. Their aim was not to decide the issue before the Court, but rather to save at least the core of Roe. The contrivance they came up with downgraded abortion from a fundamental right, such that laws infringing it called for strict scrutiny, to a "liberty interest," which called for a new, less demanding "undue burden" standard. Fiddle with the terms and the standards cleverly enough, and you can make the case come out the way you want.
In Lawrence, Kennedy found there was also a "liberty interest" in homosexual relationships. This allowed him to avoid the claim--which he knew very well would not have passed the laugh test--that a fundamental right was involved, or that strict scrutiny was required. And yet he applied heightened scrutiny to the challenged state sodomy law even under rational basis review--in which, by the Court's own well-established rules, no heightened scrutiny applies! The majority acknowledged that the law did not involve any fundamental right, and it applied what it called rational basis review. And yet it used sleight-of-hand to replace the deferential standard it uses in rational basis review with the heightened scrutiny it reserves for fundamental rights.
As Justice Scalia noted in his dissenting opinion,
Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U.S., at 721. We have held repeatedly, in cases the Court today does not overrule, that
only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are "'deeply rooted in this Nation's history and tradition'" . . . All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. (emphasis added)
Lawrence was a result-driven decision, just like Casey before it. More recently, Kennedy cooked up something similar in Windsor. He sprinkled the language of fundamental rights and substantive due process throughout his opinion, but without claiming any fundamental right was at issue, or ever stating that the holding was based on substantive due process. It's not clear that Lawrence is based on
any constitutional principle at all, unless "because we say so" qualifies as one. But arbitrary dictates from on high are just fine with statists, as long as they produce the results they want.
