Expanding Privacy

MARGARET WARNER:

And with me to discuss that, the practical effect of today's ruling, we turn to Pamela Karlan, a professor of law at Stanford University Law School; she filed a friend of the court brief against the Texas law on behalf of 18 constitutional law professors; and Michael Carvin, former deputy assistant attorney general for civil rights in the Reagan administration's Justice Department. He is now in private practice here in Washington. Welcome to you both.

Pam Karlan, beginning with you, what is the likely impact of today's ruling for homosexuals in this country?

PAMELA KARLAN:

Well, first I think it sends a powerful signal that the Supreme Court recognizes that gay people and straight people are equally people under the Constitution. Second, by sweeping these laws off the books, it takes away the ability of states to discriminate in a whole variety of areas against gay people on the grounds that being gay is the same thing as being a criminal. The Supreme Court has made it clear that that's not true. And I think those are the two biggest immediate impacts of the decision.

MARGARET WARNER:

Mike Carvin.

MICHAEL CARVIN:

That's a fair summary of what they said. They said that you can't base laws on morality or moral beliefs. Whether or not they follow the logic of this opinion to outlaw gay marriage or take into consideration of this issue in custody or adoption fights is an open question.

The court doesn't seem to follow the logic of its own opinions often and therefore they act more like politicians and probably won't follow the policy to its logical conclusion. At least that was Justice Scalia's prediction in dissent.

MARGARET WARNER:

Professor Karlan, if you take what you just said that it would have an effect on child custody, housing, adoption, issues like that, tell me how the reasoning in Justice Kennedy's opinion would lead to changes or to giving homosexuals more legal standing to challenge decisions in these other areas?

I mean this case was talking about private sexual behavior. These other things have to do with legal status in various ways.

PAMELA KARLAN:

Right. But, for example, the Dallas Police Department said we won't hire anyone who is gay to be a police officer because by definition if you're gay, you're a criminal. You're violating the sodomy statute. State Supreme Courts often say we don't think apparent sexual orientation is relevant but apparent a parent who is a criminal shouldn't get custody of his or her children.

So by taking these laws off the books the Supreme Court is making clear that being gay is not being a criminal. And therefore, you can't deny somebody employment or housing or custody of a child on the grounds that he or she is a criminal simply because he or she is a gay person.

MARGARET WARNER:

So then Michael Carvin then, if states wanted to, say, still give an advantage to heterosexual couples in adoption, they'd have to find other reasons?

MICHAEL CARVIN:

I don't think so, because let's look at it this way. Justice O'Connor was the only Justice that reached equal protection issue, the issue that Pam is talking about, about whether or not people need to be treated equally. Five Justices, most notably Justice Kennedy, didn't want to go anywhere near that. And so, for example, he did not want to put in play issues like excluding the gays from the military. He put in a sentence that said we're not dealing with legal status issues such as marriage.

So I don't think, if you have to predict, that Justice Kennedy is going to go there. I think Justice O'Connor also reserved issues like marriage from her opinion, and those are, of course, the two swing votes I think on this question. Whether or not the logic of the opinion would lead you there, and some lower courts might follow it, you know, that is certainly a plausible scenario.

MARGARET WARNER:

Staying with you for a minute, there were many sentences in Justice Kennedy's opinion they kept talking about; that it happened in the home, in the privacy of his own home. I think the very first line is liberty protects the person from unwarranted government intrusions into a dwelling or other private places. How much of this ruling rested on the fact that this was really private behavior?

MICHAEL CARVIN:

Well, that's the argument, right? Because everybody sees a common sense distinction between the government coming into your home affirmatively and depriving you of liberty and making a decision on whether or not you'd get a benefit, such as employment or welfare or government dollars. That latter category of things is dealt with under the equal protection clause, equal treatment; the first kind of thing is dealt with under the right of privacy or right of liberty to do what you want in your own house.

I don't think Justice Kennedy is going to say, 'whatever I say you can do in your own house' means that that's something that the government can't attach any significance to in any context.

MARGARET WARNER:

Do you agree, Pam Karlan, that that limits perhaps the applicability of this ruling for these other areas?

PAMELA KARLAN:

I don't agree exactly that it limits it. It's unclear how far the case extends — what the case's legs are. But I think it's clear that a state can't now say about gay people, the reason why we're discriminating against you is because you're a criminal when the Supreme Court has made it clear that you can't make it a crime for gay people to engage in the same kind of intimate activities and decision-making that everyone else has always assumed they had the right to do.

MARGARET WARNER:

So let's take Justice Scalia's prediction that this could lead to same-sex marriages or make it difficult to not have same-sex marriages. Do you think…is that your prediction?

PAMELA KARLAN:

Well, at some point down the road I think that issue will come back before the Supreme Court. And certainly the logic of this case suggests that the Supreme Court will be much more receptive to those claims than the Bowers against Hardwick Court was 17 years ago.

MARGARET WARNER:

But you don't think there's a difference, as Mike Carvin sort of said, between saying, okay, the government cannot interfere in purely private conduct, and saying a state government must grant the formal recognition that comes from the institution of marriage which is a… you know, is a civil institution created by state law?

PAMELA KARLAN:

There's a difference, for sure. The question is how much of a difference that distinction will make. It's impossible to tell at this point. I think that's several years down the road at least.

MARGARET WARNER:

Mike Carvin, Justice Scalia wrote and Jim and Jan talked about this, he said the court… he wrote, the court has largely signed on to the so-called homosexual agenda. The court has taken sides in the culture war. Do you think that's true?

MICHAEL CARVIN:

Justice Scalia and I believe that the court should stay out of the democratic process. He believes that people should be able to make decisions unless it conflicts with some provision of the Constitution.

So he wasn't voicing an opinion one way or another who was right in that debate. He was saying that the court had affirmatively declared a winner in this very important cultural debate that, as our discussion illustrates, has a lot of ramifications in other areas. And he said the court had no warrant to do that and should have let local communities and states decide these important issues for themselves.

MARGARET WARNER:

What's your interpretation of that comment by Justice Scalia, Pam Karlan?

PAMELA KARLAN:

Well, I think Justice Scalia has made it very clear which side he's on in the culture wars. And he thinks the court should stay out of the democratic process and a majority of the court thinks the courts and the legislators should stay out of adults' bedrooms.

And I think that this is not the Supreme Court stepping in way ahead of popular views. I think at the oral argument one of the things that Paul Smith, who argued on behalf of Lawrence Said, remains quite true which is that the country has moved on. I think most people would have been extremely surprised to find out that the government could make it a crime for consenting adults to engage in sex in the privacy of their own home.

MARGARET WARNER:

Finally, Pam Karlan, are there broader implications beyond, for homosexuals, and again I will quote Justice Scalia here he said all state laws against things like bigamy, adult incest, prostitution, all of these could be called into question or will be called into question by today's decision. Was the court majority saying that a state cannot enforce moral standards, period?

PAMELA KARLAN:

No, I think what the court was saying was that when a state says it's enforcing moral standards, a court needs to look at the interest of the state in enforcing moral standards and then look at the important interests of the individuals involved, so that I don't think this case takes us any closer to the legalization of incest or bigamy or pornography or any of the things that either Justice Scalia or Senator Santorum are afraid of. I think what this case confirms is that gay people and straight people are equal under the law.

MARGARET WARNER:

You're talking or referring of course to Pennsylvania Senator Rick Santorum who had made a similar prediction a couple months ago. There was a big controversy about this. Mike Carvin, what's your view on that about whether this opens the door to striking down all other kinds of state laws that deal in this area?

MICHAEL CARVIN:

Incest, prostitution are two consenting adults in the privacy of their own homes making a decision about sex. There's no principled distinction between those laws and the sodomy laws. There's a lot of policy distinctions between the two. And since the court is acting largely as a super legislature that makes political decisions, I don't think they'll follow their own logic.

The logic of the principle they articulated today means the laws involving bigamy, incest and prostitution are unconstitutional. I doubt seriously they'll follow that logic because they are politicians.

MARGARET WARNER:

But do you think and then I'll get back to Pam Karlan on that, do you think they were saying that a state has no right to enforce anything that deals with moral standards?

MICHAEL CARVIN:

They said that the state had no legitimate interest simply because a majority of the state held a particular moral viewpoint. Well, it's hard to think what other rationale you have for, say, bigamy laws or laws involving prostitution other than sort of moral disapproval by a majority of the American public. And if that's the case, then all of these laws have to be in play. It's quite clear that sodomy is sort of a silly law that's gone by the books but that's not much of a rationale for overturning it.

MARGARET WARNER:

Pam Karlan.

PAMELA KARLAN:

Well, I think there's a principled distinction between laws that target one class of people for engaging in behavior that everyone else in the state is allowed to engage in and laws that prohibit things like prostitution or incest.

Prostitution is not just two consenting adults in a room. It implicates all sorts of other issues ranging from crime to the quality of neighborhoods to the subjugation of women. And those are not an issue when you're talking about consenting adults alone in their own home engaged in non-commercial intimate association with the people they're close to. That's just very different. And it surprises me when people put homosexuality on the same side of the line as incest or prostitution, rather than recognizing that it's intimate association between two people in the same way that other couples of opposite sexes engage in intimate association.

MARGARET WARNER:

All right, Pam Karlan and Mike Carvin, we have to leave it there. Thank you both.

PAMELA KARLAN:

Thank you.