In the 1986 case, the court said it was being asked to ``announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.'' On Thursday the court seemed to think that it still had not done so. It was mistaken.
Today, laws criminalizing homosexual sodomy are rare and rarely enforced. They should be repealed. In most states they have been, by democratic persuasion.
But ``unconstitutional'' is not a synonym for ``unjust'' or ``unwise,'' and the Constitution is not a scythe that judges are free to wield to cut down all laws they would vote to repeal as legislators. Legislators can adjust laws to their communities' changing moral sensibilities without creating, as courts do, principles, such as the broadly sweeping privacy right, that sweep away more than communities intend to discard.
The question is not whether states are wise to criminalize this or that sex act outside of marriage. Rather, the question is: Once the court has said that some such acts are constitutional rights, by what principle are any of the myriad possible permutations of consensual adult sexual activities denied the same standing?
Once consent--``choice''--supplants marriage as the important interest served by cloaking sexual activities as constitutional rights, by what principle is any consensual adult sexual conduct not a protected right? Bigamy? Polygamy? Prostitution? Incest? Even--if we assume animals can consent, or that their consent does not matter--bestiality?
By what has been called ``semantic infiltration,'' seemingly bland language stealthily permeates discourse with ideology. So it is with the now commonplace locution ``sexual preferences.''
If preferences are all that they are, if none are grounded in nature rather than mere conventions or appetites, then by what principle are they not all equal? And given that in a 1992 abortion ruling the privacy right was explained as ``the right to physical autonomy,'' the question is not just whether there is a fundamental right to engage in sodomy. Why not the right to physical autonomy in using heroin?
Lap dancing as a fundamental right? That is, after Thursday, not a close constitutional call.