Obviously we can't. Nor can we, using this reasoning, outlaw any sexual behavior pursued in private. The first paragraph makes clear that the concept of privacy is ever-expanding, the expansion proceeding at the court's discretion.
I tried. Can't be done. In fact, the court has now forbidden us from constructing any legal argument based upon a moral foundation.
Law is no longer based upon morality, as is evidenced by the liberal jihad against the Ten Commandments (THE foundation of all laws) from appearing anywhere in or near a courthouse. Law is based upon whatever the most vocal minority says it ought to be. The republic, alas, is no more, as we slide inexorably into the morass of the tar pit of democracy.
Just goes to show you - with God, all things are possible; without God, all things are permissible.
OK, I, like anyone concerned with the idea of law as something other than what a bare majority of the Supreme Court opines at any given time, make the same point over at my site. Here, however, is my best effort to reconstruct what I take to the most cogent and coherent argument made by, inter alia, the critics of Scalia. Here it goes:
Homosexuality is an affection, perhaps natural, which is normal to a certain group of people who are otherwise indistinguishable from heterosexuals. Sodomy laws unfairly stigmatize that group. Incest, necrophilia and intergenerational amour (between mature individuals), in contrast, are disgusting acts indulged in by twisted people who are in no way comparable to heterosexuals and homosexuals. Further, the social ills fostered by, for example, incest, necrophilia and pedophilia (between mature individuals), as contrasted to homosexuality, are obvious and clear and anyone who thinks otherwise is a loon who is a "big idiot" and a "bigot" for bringing up the comparison. [Anyhow the necros and incesters don't have a political powerful lobby. And the Supreme Court would never, ever equate incest, polygamy or necrophilia with homosexuality because you can see how different they all are.]
How did I do? In truth, like AIDS and abortion, homosexuality is sui generis in the law for no principled reason. It just is by fiat.
The only thing I can come up with is that the number two has some sort of significance, as in:
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle."
What can you say about two adults? On what rational basis could you favor a union of two adults over a union of three or four or more?
The only thing that comes to mind is that thousands of years of human experience has shown that the family unit as an institution would suffer if legal marriage were extended beyond two people.
If it could be shown that the objectives of marriage would suffer, that children would not be raised properly and would be more likely to suffer abuse, if the state of the law regarding the passing on and division of property after the death of a "life partner" would become unsettled, you might have a chance.
On the other hand, those laws respecting the passing on and division of property can be reformed. This Court might well, in effect, demand that the states do that. Other reforms might be used to protect children.
Ultimately, I don't think any attempt to justify the banning of polygamy can stand up to this Court's desire to remove all state-imposed barriers on any sexual conduct.
Once moral considerations are swept away in the drive to do whatever you want, whenever you want to, with any person you desire to do it with, you are no longer in the early stages of sliding down the slope. You are well down the grade. We started slipping down the slope with Griswold. We picked up rather sluggish momentum with Roe. Now we are in an uncontrolled slide.
Mind, I think the Court may well try to construct some means of distinguishing polygamy from the implications of the dicta in Lawrence. I doubt that they will be ready to take on the consequences of such a decision. But their efforts will be logically weak, and of the sort that say, "We are just not ready to go there yet." It won't be, "No you can never go there, ever."
Attempts to distinguish homosexual sodomy from polygamy without reference to common morality are just defenses built of sand and without support. They will not stand up over time. It won't be long before a similarly composed Court takes the reasoning of Lawrence, and uses it to find a right to polygamy.
The only defense against that is to make sure that there is never, in the future, a "similarly composed Court." And that task rests with the people who elect Presidents and US Senators, who seem to be depressingly split right down the middle in recent elections.
But you know, I made the same points in 1st year Con Law when we studied Roe and its progeny up to Bowers,, which had just come down. I was unpopular for making these arguments then. And the liberal tilt among law students and law professors has increased since 1987.
Ah, yes, two is "private." Three's simply a "crowd." Yes, there's a strong constitutional basis for that distinction. You can see it a mile away.
Uh huh.
The only thing you can do is to construct some sort of social science argument along those lines (children & property). I don't have the data, and am not even sure it exists.
I hate social science arguments in constitutional law. The purpose of intpreting the Constitution is to derive the understood meaning of the words as framed. Social science statistics have no place in that exercise. But that is the only way to defeat polygamy, as far as I can see.
Agreed that it can't be done. However if it comes up Justice O'Connor will try. She will be the swing vote, as usual. She will, as usual, write a vacuous, incoherent decision that will be against polygamy. Stripped of all verbiage the basis of the decision will be that O'Connor finds polygamy to be "icky". Give result oriented jurisprudence it's due: once a judge is willing to write her policy prefences into law, literally nothing is beyond her power.
While the majority opinion is not necessarily to be trusted, its closing paragraphs purported to limit the scope of the decision, stating in so many words that the decision would be no authority for "gay marriage". To the extent the question concerning polygamy concerns a legally cognizable marriage of one man to more than one woman at the same time, or vice versa, I don't think Lawerence will be authority for such a thing, particularly with Reynolds v. U.S. still extant.
If on the other hand the use of the word polygamy is not intended to refer to a legally recognized union, but only to a more or less permanent "live-in" arrangement, it would be difficult to fashion an argument in support of a prosecution for such a thing. On the other hand, this is no necessary impediment: the United States Supreme Court has been exceedingly illogical and unreasonable in a number of things lately.
Has anyone noticed how much that contemptible court relied upon the European Court of Human Rights, or whatever it is, in the course of reaching its decision? Doesn't this deeply trouble anyone?
"The State cannot demean their existence or control their destiny by making their *private* sexual conduct a crime"
That is the precise difference. Lawrence allowed two individuals to do what they will in the privacy of their own home. While it prohibits the state from making such conduct criminal, it does not require the state to officially recognize the union. Official recognition (ie, SS Marriage) is a public act, not a private act. Ditto with polygamy (as an official union, it is a public act; as three or more consenting adults behind closed doors it is adultery, but private).
Now, of course, that is a legal argument. If the SCOTUS decides, in its "infinite" wisdom, that SSM is not so "icky" after all, no amount of logic can stop it.
How about this one, as a constitutional article:
"(1) Any two or more consenting adults can do what they like to each other in private, as long as they do not thereby impose on other people.
(2) To avoid doubts, "imposing" includes --
(2.1) involving people who, because of their immature age or unsound mind, are incapable of rationally consenting;
(2.2) involving animals [*** because these are by nature incapable of consenting; also, because animals mate for procreation, so even if an animal were rational it would not want to mate for non-procreative pleasure];
(2.3) requiring others to become unwilling spectators when they are in public places, or in their own homes;
(2.4) conceiving children with a high risk of genetic defects [*** No, I'm not saying such children are better off aborted, just that we should avoid sex that might conceive them; which is why Christian churches won't bless brother-sister marriages]; or
(2.5) requiring society generally to officially endorse or approve such relationships [eg, via marriage].
(3) A person is deemed to be of "immature age" if he/ she is below such age (being not younger than 14 nor older than 1
as the Legislature may specify for this purpose."
Note that, while the list in item #2 does _clarify_ the basic principle in item #1 -- and clarifies it in a direction much less libertarian than many people might prefer -- it doesn't _nullify_ item #1 by making it a dead letter of the "Freedom of speech is guaranteed, subject to the laws that regulate it" type article found in many Communist and European countries' constitutions.
Dratted emoticons. That was meant to be "not older than 18".
In Tennessee (my home), incest and bigamy are crimes (I think that is the situation in many states). I believe Lawrence requires Courts to conclude that those criminal laws are unconstitutional (as between and among consenting adults).
I agree w/ C Matt that Lawrence does not affirmatively require the state re "bless" such private relationships. Lawrence only decriminalizes them.
Version 2:
"The lawfulness of a sexual act shall not depend upon the sex or gender of any or all of the persons taking part in it."
Still rules out incest, polygamy, paedophilia, bestiality, etc. Mirrors the Nineteenth Amendment which states that voting rights can't depend on sex (although they can depend on citizenship, age [if under 18], registration, residency, etc).
I should clarify: there are three different questions to be asked after the _Lawrence_ judgment, and the answers may be quite different. (1) Is homosexual intercourse immoral? (2) Should homosexual intercourse be prohibited using the criminal law? (3) Should legislators be constitutionally permitted to prohibit homosexual intercourse using the criminal law? I suspect that for many conservative Christians, the answers are: -- (1) Yes (from all), (2) No (from most), and (3) Yes (from most). Only if your answer to (1) is No, does a "No" to (2) and (3) usually follow -- and even then it's not _logically_ necessary: I don't consider it immoral to drive on the left side of the road (we do it all the time here in Australia! Talk about moral relativism!), but if an American State legislature says "drive on the right side", _then_ it becomes immoral to disobey. Driving Sydney-style in New York is wrong, although a "malum prohibitum" not a "malum in se".
Given that national public opinion in most Western democracies favours legalisation of gay sex and (in most cases) non-discrimination against gays, it becomes imperative to try to do better than Senator Santorum to find a legal principle that prevents paedophilia, bestiality, adult incest, etc, becoming "constitutional rights" by extension.
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