HUGH'S REPLY, AND MINE
by Virginia Postrel • Apr 25, 2003 at 2:16 pm
Hugh Hewitt sends an email in response to my earlier posting, SINFUL = ILLEGAL?:
I think you may have missed my point, and many people are missing the fact that there are concurrent debates running here. The first is on the morality of same-sex relations. You accurately quoted my view on that. The second is on the Supreme Court case: The Court ought not to strike down the anti-sodomy statiute because it is clearly not unconstitutional, as Bowers demonstrated. Santorum's argument was that the logic of any such holding would have to be applied to other currently prohibited consensual sexual activity between adults. Eugene Volokh, for example, readily admits this and welcomes it. I don't. These are legislative decisions, made in a context of a federal system that demands respect from the court. Turning every debate into a fight over the morality of same-sex relations, while simplifying the debate into one of legislating against sin, overlooks the enormous dangers to liberty inherent in investing a majority of nine unelected judges with life tenure with re-write authority over any state law they disagree with. Cheers Hugh
My emailed reply to Hugh:
Actually, there are THREE debates going on. One is constitutional. One is moral. And the third, to which I addressed myself, is political: Assuming no constitutional limits, what ought the criminal law to be? You're dodging that question, but Santorum isn't. That's the question that goes to the heart of the relation between religious teachings and the role of the state.
The policy question is also the one to which Andrew Sullivan has primarily addressed his remarks. It's far more interesting--and, in my view, much easier--than the constitutional question. But it's the question conservative pundits mostly want to dodge.