Eugene Volokh: Gay rights and the First Amendment

The prof cites Irving Kristol as stating that advocation of homosexuality and pornography are not covered by the First Amendment. (Here's a follow-up.) I think that twenty years ago, I would have agreed with Volokh that Kristol is wrong. Now, I'm not so sure.

I have realized that, for all our emphasis on liberty, the arrogation to themselves of expanding power by the federal courts threatens a lot of what we think of as part of our rights, the right of the majority, especially on a local level, to define the kind of society they want to live in. It's the right of people to enter public spaces without being embarrassed, the right of parents to feel that they can let their kids go out and play without fearing that their efforts to instill values will be swept away on a tide of "free speech."

On one hand, I think that it is protected speech to decry the brutalization of gays, especially by police. On the other, I do not think that laws against homosexual behavior are flatly ruled out by Constitution. I think that the line of cases based on privacy are misguided and poorly reasoned. It should certainly have been possible to find grounds to strike down the law against used of contraception on the ground that there is no way to enforce it consistently with the Fourth Amendment. What constitutes probable cause to justify barging into someone's home to check on whether they are using contraceptives? I have a hard time imagining what it would be. However, prohibiting doctors from performing abortions is a differet matter. I suppose that if doctors were doing so during housecalls, I would agree that it would require a higher level of scrutiny before issuing a search warrant, but I don't think medical clinics have quite the same level of protection that homes do. It's true that the basis of this protection of homes may be based in privacy concerns, but I'm not willing to extent the language of the Constitution to every claim of privacy.

Here's another, more eloquent explanation, in the context of a dispute over the removal of a Christmas tree from the atrium of the University of Indiana, and a discussion on the Dennis Prager show. Prager defended the tree. Tarzana Joe opines:

His adversary in the discussion, a law professor at the school, replied that we lived in a country where once the majority supported slavery. Thus, the opinion of the majority should be held as having no value when deciding the fate of the tree. To equate the majority�s delight in a tree to their toleration of slavery is to understand neither Christmas nor slavery. Never mind that slavery was never put to a direct vote in this country, her point was made with the holier-than-thou sanctimony that achieves its purest form only in the breath of atheists.

But I was listening. And the professor�s remark suddenly enlightened me.

The tree is not the enemy. Neither is Christmas. The enemy is the majority. The majority is tyranny. The tyranny of morality. The tyranny of temperance. The tyranny of abstinence.

The left knows better. But the majority is too stupid to ever understand that. The left knows that they will never be able to educate or convince the majority. Thus, the majority is to be defied and defiled. If you are part of the majority, you participated in slavery, the oppression of women and the Indian wars. The majority is to be opposed and beaten with the only weapon available in a representative democracy�the fiat of judges.

Once the judges do their work, the majority will adapt to the new ways�even if they don�t have the capacity to understand them. Heck, they might even be able, someday, to witlessly mouth the tenets of the left just like a catechism.

It has already worked with abortion. The majority feels abortion is a horrifying thing-- but do nothing about it.

So where ever the majority lives�eating meat, wearing fur and leather, praying, celebrating, marrying�you will find the left attacking. Just listen for it.

This is why I fear the dominion of the unelected, life-tenured, whether they be federal judges or university professors.