So here is the real proposition before the Court: If a man has sex with a man, he is expressing a right. If he has sex with two women, he is still expressing a right. But if he marries the two women first the state can punish him to protect matrimony.
The current petitioners may believe this. But one suspects their bedfellows in the cause will soon be clamoring for logical consistency. They will give Scalia a straight answer. To his question, "Why is this different from bigamy?" they will answer: It is not. Bigamy, too, is a fundamental right.
Where does it end? Who can tell -- given that a ruling for the petitioners could cause catastrophic collateral damage to the foundation of law itself? All men, said the Founders, "are endowed by their Creator with certain unalienable rights." If all consensual adult sex is one of those rights, either God gave it to us or some force other than God is author of our liberty.
Seventeen years ago, in Bowers v. Hardwick, when Laurence Tribe first argued for this right, Justice Byron White, writing for the Court, said "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road."
Chief Justice Warren Burger scoffed at Tribe's claim. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right," he said, "would be to cast aside millennia of moral teaching."
The power to do just that resides now with five judges.