Pedophile Checkers

I've been intending to note Gabriel Rosenberg's response to my post that pointed out two "of the trail markers along the slippery slope that supporters of Lawrence assured us did not exist." One of those markers was a footnote in an ACLU brief that referred to teenagers' "well-established" right to make personal decisions about sex and marriage. Rosenberg quotes a sentence from the first paragraph of the footnote and writes:

Note that this is still an equal protection argument. Under federal law there is generally two ways in which an equal protection claim can force a heavy burden on the state to justify its unequal treatment of individuals. One way is if the differential treatment was based on some suspect classification like race, or in this case, gender. That is the main argument being made here. The other way, though, is if the subject matter of the unequal treatment concerns a fundamental right.

We're dealing with shades of rhetoric, here. I merely claimed, following the Kansas Attorney General, whom Clayton Cramer quotes, that this is a glimpse of an argument that may be brought into play later in the culture wars. Here's the paragraph of the footnote that Rosenberg doesn't provide (see sheet 23 of this PDF):

In addition, the exclusion in the Romeo & Juliet law must satisfy heightened scrutiny because it provides gay teenagers with differential access to a fundamental right. While a teenager's constitutional rights are more limited than an adult's rights, and while the state is more likely to have a significant or compelling state interest that justifies intruding upon a teenager's rights, it is well established that teenagers — including gay teenagers — have a due process liberty interest in being free from state compulsion in personal decisions relating to marriage, procreation, contraception, family relationships and sexual intimacy; it is also well established that laws that burden a teenager's liberty interest must be narrowly tailored to advance a compelling governmental interest unless they advance "a significant state interest that is not present in the case of an adult."

Returning to Rosenberg's post, I was pleased to see that frequent commenter Ben Bateman had already made the core of the rebuttal that I intended to offer:

The concern is not that the ACLU is literally arguing for legalizing pedophilia in the Limon case. It doesn't work like that. It hasn't worked like that. The point is that footnote 4 attempts to introduce the foundation for a future move to legalize pedophilia. If a court agreed with and cited the above quote as a correct statement of law, then it would be much easier for some future court to extend that logic just a little further and conclude that laws against pedophilia aren't narrowly tailored enough, don't meet a rational basis test, or whatever excuse they want to use. ...

I think you're too smart not to understand how that language could be used to legalize pedophilia. You just don't think that the courts would actually do it. And just like in Lawrence and Goodridge, the courts won't tell you that they're going to do it until they've done it. So I guess you won't believe it is happening until it has already happened.

I would add that the subsequent citations in the ACLU footnote claim precedent for two points. First, that "minors have liberty interest protected by the Due Process Clause of the Fourteenth Amendment." Second, that Lawrence established "that liberty interest in personal autonomy includes matters of private, intimate conduct and protects gay people just as it protects heterosexuals."

Responding to Ben, Rosenberg admits that he thought Lawrence "would be [decided] on equal protection grounds and expressly not overturn" Bowers v. Hardwick, a case upholding sodomy bans. It seems to me that much the same move is coming together for age-of-consent laws. As much as he insists on keeping the footnote in context, Rosenberg ignores the other "marker" in my post, which pointed to a comment in a judge's dissent to a statutory rape case involving a mentally retarded adult. The judge wrote:

Expert testimony at trial also suggested an invitation to apply one's own moral framework to JH's sexual choice. In explaining why JH's consent was not valid, the prosecution's non-medical expert on sexually abused, mentally retarded individuals testified that whereas JH sees "sex" as merely a physical act, "If you ask, you know, anyone else what sex was or what intercourse is you see an entire picture. You see the candles, the wine, the dating, you know, whatever else goes on. With her sex is just one quick spur of the moment thing."

That the state may not burden a particular sexual choice out of distaste or disagreement is the central holding of Lawrence.

Now look back at the precedent in the ACLU footnote. The first confirms minors' due process rights; the second specifically extends those rights to include sex, which, in essence, is the expanded ruling that Rosenberg hadn't expected in Lawrence. They may not, ultimately, prove necessary, but we can add in a couple of other factors to give an idea of areas from which the "unthinkable" ruling might come.

Consider, first, the possibility that the judge's dissent in the adult rape case may someday be vindicated in another ruling elsewhere. Consider, second, parental consent laws for abortion; the ACLU footnote lumps procreation and contraception with intimate conduct. In 1990, Hodgen v. Minnesota, the Supreme Court found that a state could only require notification of both parents if a court could bypass the requirement. Justice Stevens opined:

The State has no legitimate interest in conforming family life to a state-designed ideal by requiring family members to talk together. Nor can the State's interest in protecting a parent's interest in shaping a child's values and lifestyle overcome the liberty interests of a minor acting with the consent of a single parent or court.

So, if Lawrence is found to invalidate laws that step in when mentally retarded adults consent to sex, mental capacity (much less maturity) becomes less rational of a basis to render consent legally impossible, the bias being construed as merely inapplicable "distaste or disagreement." Justice Stevens diminishes "a parent's interest in shaping a child's values and lifestyle" in comparison with the child's liberty interests in the context of abortion. And the ACLU lashes contraception and procreation with sexual conduct, while arguing that minors' due process rights cover "private, intimate conduct."

Suppose a case like the Kansas one for which the ACLU submitted its brief reaches the Supreme Court. Hop, hop, hop. Lawrence Jr.