PRESTOPUNDIT -- "An intense brain-buzz, guaranteed" (2blowhards)

But in his opinion for the Court, Justice Anthony Kennedy preferred a far more grandiose approach. He said the case "involves the liberty of the person both in its spatial and more transcendent dimensions." He then made clear how transcendent he considered these dimensions by quoting his own paean to liberty from the case that reaffirmed Roe in 1992, a dictum that Justice Scalia called the "sweet-mystery-of-life passage": "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This passage has been properly ridiculed by lower court judges for the past decade because of its melodramatic implications. If carried to its logical conclusion, it seems to read the libertarian harm principle of John Stuart Mill into the Constitution, preventing the state from forbidding individuals from engaging in behavior that the majority considers immoral but that poses no harm to others. But in Lawrence, Kennedy, joined by four of his colleagues, made clear that a majority of the Rehnquist Court does in fact mean to read the "sweet mystery" passage for all that it's worth. He said that states and courts should not attempt to "define the meaning of the [intimate sexual] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects." As Scalia correctly observes, "This effectively decrees the end of all morals legislation."

Stanley Rosen.

I'd suggest as a slight correction -- Justice Kennedy is actually making Kant's moral philosophy (not his legal philosophy) the law of the United States -- e.g. he appeals in crucial ways to the concepts of individual "autonomy" and "dignity" in ways familiar from Kant. Andrew Sullivan's blogging expresses more of the thinking of a Mill man than does Justice Kennedy's opinion, althought there is surely doses of Mill in the new law. Students of the philosophy of law will well understand that it is a sophomore's mistake to conflate law and morality. What is law is not always of a moral character, and what is moral is not always of a legal character, to put things simply enough to explain the point to sophomores. Has Kennedy forgotten this? These folks on the court are so old it does raise important questions about how far each of them are along in the process of cognitive decline -- which science tells us is a universal fact measurable in every one of us as we get past 40.