Sodomy and the Pledge of Allegiance

An unlikely connection, but here goes. One part of yesterday’s ruling struck me as interesting:

(b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 478 U. S., at 192. It should be noted, however, that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally, whether between men and women or men and men. Moreover, early sodomy laws seem not to have been enforced against consenting adults acting in private. Instead, sodomy prosecutions often involved predatory acts against those who could not or did not consent: relations between men and minor girls or boys, between adults involving force, between adults implicating disparity in status, or between men and animals. The longstanding criminal prohibition of homosexual sodomy upon which Bowers placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. Far from possessing “ancient roots,” ibid., American laws targeting same-sex couples did not develop until the last third of the 20th century.

The implicit reasoning seems to be along the lines of if something is constitutionally questionable but it dates back to the American Revolution or thereabouts, then it’s ok. But if it’s constitutionally questionable and originated in the 20th century, then the court will strike it down. This logic suggests that this Supreme Court would be likely to uphold, by a 6-3 vote, the 9th Circuit’s ruling that reciting the Pledge of Allegiance in schools, when the Pledge contains “under God”, is unconstitutional, since “under God” was added in 1954. Of course the sodomy case was ruled under equal protection grounds while the Pledge case involves the establishment clause (“Congress shall make no law respecting an establishment of religion…”).