Justice Anthony Kennedy preferred a far more grandiose approach (in the Lawrence case on sodomy laws) . 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." ...

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." Jeffrey Rosen

Fascinating discussion on the pros and cons of judicial morals legislation and indirectly of what Tillich called the "protestant principle" in this week's The New Republic.