In short, the States should remain free to protect the moral standards of their communities through legislation that prohibits homosexual sodomy. If legislation of such activity is no longer supported by a majority of the citizens of the States, the legislatures of the States will repeal them, or elected executive officials will cease to enforce them. The recent movement toward decriminalizing homosexual sodomy, even with Bowers v. Hardwick on the books, shows that the legislative system is quite able to respond to popular will without judicial prodding. Impatience with the pace of change, or with the resistance of citizens who do not regard the change as beneficial, does not justify the judicial creation of a new constitutional right.

...

In his Poe v. Ullman dissent, which foreshadowed the recognition of the marital right of privacy in Griswold v. Connecticut, Justice Harlan said that homosexual activity, even when “concealed in the home,” was a proper matter of state concern and could be forbidden by the States ...

Not only did Justice Harlan find no fundamental right to homosexual activity, he found a fundamental “pattern ... deeply pressed into the substance of our social life” against such practice. Later in his dissenting opinion, Justice Harlan repeated his position “that adultery, homosexuality, fornication, and incest ... however privately practiced” are subject to state proscription.

Here are the relevant parts of his amicus brief:



If this is him writing--as opposed to a brief from a religious gathering of attorneys on a matter in their district, of which he co-signed--on first blush I find his prose...lacking for a federal judge. "On the books" should be a tertiary option only dictated by a lack of synonymous phrases used in a single work.

Of course, also of note is the fact that dude is using dissenting opinions as the foundation of his brief. Which while not technically wrong is...bleh. Harlan's dissent in the last paragraph does bring up an interesting point in noting that there are certain things, despite their private and perhaps consensual practice (incest, bigamy), the state still has a vetted interest in proscribing certain sexual acts.

Here's the job requirement for Supreme Court Nominee : interpret the constitution unbiased.

How fucking hard is that! The whole court is a joke. Each justice is too political on the bench (except maybe Kennedy).

I hoped Trump nominated someone who will just do the fucking job without taking sides left or right. But I think that boat has sailed since he has to appoint a right winger to appease that part of his base.