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June 17, 2003

Consistency on Gay Rights?

Libertarian Clint Bolick notes the inconsistency of liberals and conservatives on the "gays in the Boy Scouts" case a few years ago and the upcoming decision on whether Texas can ban gay sex.

But despite the fact that at their core both cases embrace the same constitutional values, most of those who cheered the first decision will revile the second, and vice versa. That is because the first decision upheld the right of the Boy Scouts to exclude homosexuals as assistant scoutmasters, while the second likely will strike down a Texas law that prohibits homosexuals from engaging in voluntary sexual acts.

That one's position on freedom of association depends on one's position on homosexuals demonstrates how ideologically polarized -- and how divorced from transcendent neutral principles -- constitutional debate in America has become.

Bolick is consistent in wanting the courts to second guess elected officials in both cases. I guess I'm consistent in wanting the court to stay out of both.

If the Court strikes down the Texas law, I've argued in the past that the Supreme Court would just be striking down antigay legislation that's already under assault democratically, while doing little to substantively help gay rights. Notably, if they had just let New Jersey regulate discrimination by the Boy Scouts, that would have been a far greater gain for gay rights.

So this is an almost perfect illustration of why progressives overall do better with judicial restraint than with judicial review. Conservative Bolick is right to be promoting lots of judicial intervention-- that's historically good for rightwingers and he's out there trying to convince them of that. While I'm over here trying to convince progressives to abandon their allegiance to starry-eyed memories of judicial Camelot.

Democracy is rough at times, but overall it's far better for civil and economic rights.

Posted by Nathan at June 17, 2003 04:38 PM