Kalscheur, Public Morality, and Judicial Power

Thanks to Michael P. for posting Fr. Greg Kalscheur's new paper on the Lawrence case.  I had a chance to read closely, and comment on, the paper this summer, and thought it was very insightful. 

One thought that I shared with Fr. Kalscheur -- a thought that might serve as a caveat -- is that, in my view, it is important that we distinguish between (a) the criteria we might use to evaluate the justice or wisdom of a law and (b) the criteria we might use to evaluate the soundness of a judicial decision invalidating, on constitutional grounds, a law. 

In my view, the "public morality" standard (and the several other factors Fr. Kalscheur identifies) are indeed quite useful for (a).  That is, like Fr. Kalscheur, I am inclined to think that the law struck down in Lawrence, and laws like it, are unwise, even unjust.  Still, I do not believe this necessarily authorizes their invalidation, on federal constitutional grounds.  It seems to me that Fr. Kalscheur provides us with very good reasons for agreeing, on policy grounds, with the outcome in Lawrence; I'm not sure, though, that this does much to answer those critics who insist that Lawrence was not a justified use of judicial power.  (It is worth noting that Justice Thomas wrote a short opinion in Lawrence that is quite consonant with Fr. Kalscheur's argument but that the paper does not discuss).