Moral Disapproval and Animus

I appreciate Richard's comments on the Kansas case, which I think go straight to the heart of important issues.  He points out that the 18-year-old defendant might have been characterized as a "sexual predator," with two previous offenses with younger teens.  But I think that this highlights the problem with the "Romeo and Juliet" law.  Under it, no 18-year-old boy engaged in repeated opposite-sex acts with 14-year-old girls can be treated as a sexual predator; the maximum sentence is 15 months, and there can be no post-sentence probation or sex-offender registration, the legal marks that brand someone as a predator.  I don't think it's unfair to say that the law treats all those opposite-sex acts as involving "our kids," who are redeemable and therefore shouldn't have their lives unalterably put our of whack by a long prison term.  No matter how repeated the behavior, we're going to try to understand this person as a kid whom the law should handle carefully.  But the statute doesn't give such consideration to teenagers engaged in same-sex acts.

I don't think that classifying homosexuality as an "objective disorder" is irrational, or that courts should hold it to be irrational as a constitutional matter.  But can that classification come close to bearing the weight that the Kansas differential statutory scheme puts on it?  At some point, it seems to me, the state's treatment of a person resembles less a judgment about the objective disorder of this particular conduct, or this particular aspect of a person's life, and more a judgment than the person as a whole is irredeemably flawed and unworthy of respect from society.  After all, there are people out there -- including some from Kansas -- carrying "God hates fags" signs.  Can we really assert that such sentiments don't play a considerable role in the passage of laws like this with such huge potential differences in prison terms?

I have said that I think the constitutional questions are tough, because moral disapproval of conduct is a rational basis for legislating and I worry that courts won't try to draw sensitive lines between that and pure hatred or dismissal of the person.  Moreover, the strongest objections here may go to the individual sentence, which could be attacked under other legal theories.  But as I understand Catholic thought, it draws the line between disapproval of conduct and dismissal of the person, and so I don't think that Catholic legal theory should rule it out a priori as a line for courts to draw.  Maybe it's a judicially unmanageable line to draw in constitutional review, but we shouldn't conclude that without further exploration of the kinds of distinctions that might help in drawing the line.  To reiterate, the problem is not per se with treating homosexual conduct worse, but rather with the nature and severity of the differential treatment.

I think that Richard's post, in citing the Bradley and George approach in their Lawrence brief, runs the very same risk that their brief runs:  harming the traditionalist's ability to critique the culture of "anything goes" heterosexuality.  Yes, one can make the distinction that the opposite-sex activity is bad while the same-sex activity is worse.  But when the differential in legal treatment one is trying to defend is so great, one inevitably ends up sending one of two messages:  either (1) the same-sex behavior is just horribly, horribly atrocious, or (2)  the opposite-sex behavior really isn't so bad.  Since message #1 starts to shade over in the public view into animus (which loses the argument constitutionally and otherwise), there's a strong tendency for the message also to include some of #2 -- that the opposite-sex behavior isn't really that bad -- which is what undercuts the traditionalist cultural critique.

Obviously, this last point goes not to the constitutionality of laws like the Kansas one, but only to the prudence of enacting -- and defending -- them.  I realize that, once a really bad law gets enacted and challenged (and isn't repealed because of the challenge), there are reasons to defend it because of the need to defend certain broader principles that striking it down would endanger.  The most obvious conclusion to draw from all this, I guess, is that -- to the extent traditionalists lawyers and legal scholars have any influence over legislators -- they should (and I imagine many do) say vehemently to the legislators:  Don't pass laws like this!  Don't push us toward having to defend them!

Tom