Second Thoughts

I'm having second thoughts about how much I like Kennedy's opinion. I certainly like the outcome, but let's set that aside. I'm glad it was decided on privacy grounds, but I don't think Kennedy really comes out and says what he ought to have said to truly ground this in the realm of substantive due process.

Larry Solum notes that:

Scalia argues that the majority employed "rational basis scrutiny," but having read and reread Kennedy's opinion, I think this is just plain wrong. Althouigh there is ambiguity, it looks like a fundamental rights decision to me.

But that's exactly one of Scalia's attacks. He's arguing that the majority, whatever they may think, did NOT make a fundamental rights decision:

...nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual conduct were a fundamental right.

Now Scalia may just be acting deliberately obtuse, but I think what he's really saying is that the traditional application of 'fundamental rights' protection required finding something to BE the fundamental right. In this case, as Scalia points out, Kennedy merely shows that ALL sodomy was illegal throughout our history, not just homosexual sodomy. That doesn't support a 'fundamental rights' claim though... after all, what right is it that we're talking about?

Consider the Glucksberg standard for substantive due process claims:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition". Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest.

So Scalia is shaking his head and wondering why the majority doesn't even mention this.

If it is NOT a fundamental right, then it is supposed to get the deferential 'rational basis' test. Scalia thinks the law clearly has such a basis, and the majority never really addresses it, since they seem to think they are doing fundamental rights analysis.

Eric Muller is equally puzzled:

That Justice Kennedy sure can write a perplexing opinion! This reads like a companion piece to his opinion for the Court in Romer v. Evans: It reads great, but when you get to the end of it and try to fit it into any of the Court's established frameworks of review (strict scrutiny, rational basis, etc.), you're left scratching your head. I'll have to think for a while about whether Kennedy's doing this on purpose in these cases about homosexuality; surely he knows what a standard of review is and how to apply it, so he must be up to something. I'm just not sure what.