The Supreme Court yesterday struck down as unconstitutional a Texas law that criminalizes “deviate sexual intercourse with another individual of the same sex.” The Texas law defined such acts as “any contact between any part of the genitals of one person and the mouth or anus of another person” or “the penetration of the genitals or the anus of another person with an object.”

In his dissent, Justice Thomas describes the Texas law as “uncommonly silly.” “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources,” he says. Justice Thomas goes on to say, however, that his job as a Supreme Court Justice is to decide cases based on the Constitution and the federal laws. And that he couldn’t find in the Constitution a right to do what the Texas law forbids.

Justice Thomas strikes us as correct on both counts. The majority opinion, by Justice Kennedy, makes a strong — and to us, persuasive — case against the sodomy law on the merits. It cites the 1955 Model Penal Code of the American Law Institute in arguing that sodomy laws undermine respect for the law “by penalizing conduct many people engaged in.” Such prohibitions tend to be enforced arbitrarily and rarely.

But, as Justice Scalia points out in his dissent, “persuading one’s fellow citizens is one thing, and imposing one’s views in the absence of a democratic majority is something else.” Justice Scalia notes that efforts in Congress to ban “discrimination” against those who engage in homosexual acts have foundered, that federal law still mandates the discharge of gays in the military, that the Supreme Court found as recently as in 2000 that the Boy Scouts have the constitutional right to discriminate against gays.” What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change,” Justice Scalia says.

We share the court majority’s impatience at Congress’ failures on this front. Whatever one’s religious or secular tradition teaches about homosexuality, enforcing laws against it seems to us an inappropriate use of state power in the pluralistic, free democracy that is America in 2003. It’s heartening to see that six justices — seven if you count Judge Thomas — apparently agree on that count. Unfortunately, the Texas Legislature apparently does not agree. As Judge Scalia puts it, “It is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.” The Supreme Court majority’s attempt to find a right to homosexual sex within the due process clause of the 14 th Amendment — “nor shall any State deprive any person of life, liberty, or property, without due process of law” — is valiant, but alas, a constitutional stretch.

A better remedy would be for the Texas Legislature itself to repeal its state antisodomy law. But by spurning this route and taking matters into its own hand, the Supreme Court will no doubt embolden an attack on other laws relating to sex and even marriage. And here there may well be some ironies. The 1996 “Defense of Marriage Act,” which defined marriage as “only a legal union between one man and one woman as husband and wife,” was signed by President Clinton. It passed the House of Representatives with 342 votes, including those of Charles Schumer of New York and Richard Gephardt of Missouri. It passed the Senate with 85 votes, including those of Senators Daschle, Leahy, Lieberman, Wellstone, Lautenberg, Levin, and Bradley. Like Justice Thomas, we think the Texas Legislature has been wrong on this issue. Now that the court has entered this terrain, it would not be surprising to see the above-named solons of impeccable liberal credentials in the same predicament as their legislative colleagues in Texas.