The Complexities of “Unfair Discrimination”

In your editorial on the sodomy and affirmative action cases the Supreme Court has decided to bear (“The Court’s Social Agenda,” Dec. 3), you dismiss the sodomy issue in two sentences — sodomy laws are anachronistic, but states themselves can repeal them if they wish; the court should stay out of it — then devote the rest of the editorial to affirmative action.

Trouble is, your counsel to the court in the sodomy case applies equally to the affirmative action cases. Or, to put it tile other way around, the arguments that compel the court to strike state affirmative action programs apply equally to state sodomy laws. Unfortunately, your brief against affirmative action does not raise those fundamental arguments. Instead, you say that “when it started out, affirmative action was supposed to be about equal opportunity; today, thanks in part to the High Court, it is more about quotas and preferences.”

In truth, affirmative action was fashioned originally as a remedy for past wrongs, not as a policy to achieve equal opportunity. And the wrongs affirmative action supposedly remedied were laws or practices that unfairly discriminated, thus denying individuals the equal protection of the laws — that’s not the same as “equal opportunity.” Yet affirmative action policies are themselves discriminatory: being later in time and class-based, they give a leg up to those who have suffered no harm while holding back those who have done no wrong. Their basic flaw, in short, is in denying the equal protection of the laws — the very wrong they were meant to remedy.

But that same equal protection argument applies, mutates mutandis, to the Texas sodomy statute at issue before the court; for that law prohibits only homosexual sodomy, thus denying homosexuals the same protection — the same freedom — it allows heterosexuals. If affirmative action is unconstitutional because it unfairly discriminates, so too is the Texas statute and those of three other states that do the same.

But what of the nine other state statutes that ban sodomy for everyone, without discrimination? Here, the court will be put to the test, if it chooses, to “find” a right to sexual freedom “in” the Constitution.

Most advocates of such freedom will point to the “privacy right” the court has found in various parts of the document, most often in the 14th Amendment’s Due Process Clause. The history here is long and complex: Suffice it to say that the better course is to derive that right from the 14th Amendment’s long-ignored Privileges or Immunities Clause, which was meant to protect, among other things, the freedom and personal integrity of the individual. If the court has trouble deriving such a right from that clause, perhaps it should ask simply whether any third party can be heard to complain that his rights are violated by those performing the proscribed acts. If not, then there is no right for the state’s police power to secure and, by default, individuals are free to do as they wish in the privacy of their own homes.

We have here, in short, nothing more complicated than “the right to be let alone,” as Justice Brandeis famously put it. If the Constitution does not protect that. we have been sorely misled about its stature.

Roger Pilon is Vice President for Legal Affairs and Director of the Center for Constitutional Studies at the Cato Institute.