There is a liberal saying that you can't legislate morality. It's both true from a practical standpoint and a moral one. Of course certain moral behaviors, such as murder and theft, are undeniably necessary for the public benefit. But when it comes to private morality, it's difficult to rigorously enforce any law that has no victim (except, arguably, its perpetrator).

The flipside of that, in my mind, is that you can't legislate tolerance. To be sure, you can dull the effects of intolerance by financially compelling companies to hire minorities and punishing those that blatantly refuse to. But when all that's said and done, it's as difficult for the government to change the hearts and minds of people to make them more tolerant as it is to make them more moral.

Both laws against immorality and bigotry can only succeed with the consent of the public. Enough people outside the South cared enough about Jim Crow that laws were forceably consented to and once that happened, the South had no choice but to acquiesce.

Gay rights uniquely touches on both tolerance and morality and nowhere is the occasional conflict between the two more apparent in this struggle. Those that fight against gay marriage and the like do so in the name of morality. Those that fight for it do so in the name of tolerance.

Along with capital punishment, my position on gay rights is among my most liberal ones. I not only believe that "sodomy" laws ought to be repealed, but I believe gay couples that so choose ought to be afforded the same rights and given the same obligations as heterosexual married couples.

So I am not the least bit sorry to see the sodomy laws go. I am, however, disturbed as to how it came about.

A while back, Jane Galt pointed out an article in The Economist as to why the abortion debate rages on in the US long after it has been settled in Europe. Surprisingly, it has less to do with different views of morality as it does how each came to allow abortion in the first place:

Why does abortion remain so much more controversial in America than in the other countries that have legalised it? The fundamental reason is the way the Americans went about legalisation. European countries did so through legislation and, occasionally, referenda. This allowed abortion opponents to vent their objections and legislators to adjust the rules to local tastes. Above all, it gave legalisation the legitimacy of majority support.

Most European countries provide abortion free. But they have also hedged the practice with all sorts of qualifications. They justify abortion on the basis of health rather than rights. Many European countries impose a 12-week limit (America, by contrast, allows abortion up to about 24 weeks and beyond, and many abortion-rights advocates seem to oppose any restrictions.) Frances Kissling, head of Catholics for a Free Choice, also points out that the Europeans have been careful to preserve a patina of disapproval. Even in England, the country with the most liberal abortion laws in Europe, women have to get permission from two doctors.

America went down the alternative route of declaring abortion a constitutional right. (The only other country that has done anything comparable is South Africa.) . . . It would be hard to design a way of legalising abortion that could be better calculated to stir up controversy. Abortion opponents were furious about being denied their say. Abortion supporters had to rely on the precarious balance of power on the Supreme Court. Legalisation did not have the legitimacy of majority support. Instead, it rested on a highly controversial interpretation of the constitution (abortion rights are clearly not enshrined in the constitution in the same plain way that free speech is). By going down the legislative road, the Europeans managed to neutralise the debate; by relying on the hammer-blow of a Supreme Court decision, the Americans institutionalised it.

A Constitutional amendment freed the slaves and a ruling on the Constitution striking down "Seperate But Equal" was instrumental in desegregation. However, the democratic legitimacy was ushered in by a series of law passed. As opposed to being dictated by nine people in the high court, it was a direction our country moved and, despite our imperfections on the matter, we've never looked back.

Pro-choice forces became impatient with the liberalization of abortion laws and instead found their salvation in a single court ruling (followed by various concurrences). Because of this, people were left out of the debate and when that happens, it becomes extremely polarizing and energizing for the opposition.

So what does this have to do with homosexuality and sodomy laws? A whole lot.

The rationale the courts used for both cases was the so-called "Right to privacy."

It sounds like such a benign concept, doesn't it? Everyone likes privacy. Who could object to that? I personally disagree with certain applications of it (abortion, specifically), but I certainly like the concept. A vague "right to privacy" is my rationale behind my opposition to a number of laws against things I consider morally wrong, such as adultery.

The problem is that the courts made the vague notion absolute and came to the absurd conclusion that the "liberty" in "life, liberty, and the pursuit of happiness" is translated to a right specifically applied to sex (and maturnity) law.

Well, another word in the above phrase is "life," so does that mean that the Supreme Court ought to be pro-life? It's less of a stretch, but if the Court declared such, regardless of my views on abortion, the death penalty, and euthanasia, I would be equally appalled.

Any point in the constitution can be construed to mean what it clearly doesn't say. If you accept it when it supports your policy positions, then you have to accept it when it flies contrary to them.

I find the cheers coming from liberals to be predictable, but those coming from libertarians are particularly disturbing. It appears that even the idealistic strict-constitutionalist libertarians support a different sort of elastic clause.

This is my first time to comment on the ruling, mostly because I couldn't cheer the ruling (because I disagreed with the means) nor could I muster much outrage (because I am happy with the ends).

Unfortunately, via Nathan I found out that USA Today reports that like the abortion ruling, cutting corners judicially comes at a cost:

Advocates for gay men and lesbians called the poll disappointing. "Clearly, the debate (over recent developments) has had an effect," says David Smith of the Human Rights Campaign. But over time, he says, "The country always ends up on the side of fairness, and I think they will here, too."

Those making the biggest shifts included African-Americans. On whether homosexual relations should be legal, their support fell from 58% in May to 36% in July. Among people who attend church almost every week, support fell from 61% to 49%.

The survey also found rising opposition to civil unions that would give gay couples some of the rights of married heterosexuals. They were opposed 57%-40%, the most opposition since the question was first asked in 2000.

By 49%-46%, those polled said homosexuality should not be considered "an acceptable alternative lifestyle." It was the first time since 1997 that more people expressed opposition than support.

I wish I had Mr. Smith's confidence, but seeing as how their movements next mission is to force gay marriage through the courts, I believe that we're headed down the path to prolonged conflict.