Well, for one thing, it's more common for a heterosexual couple to practice sodomy than it is for a man to get pregnant.
Of course this is the sort of reasoning that could be weighed against a "compelling government interest", as the Court often does. But that is once again shaky territory. Outlawing abortion is obviously a compelling government interest if it is equated to murder, but how should the Court determine whether it should be? Based on the individual opinions of the Justices? Based on the prevailing social norm? Or should it just accept that abortion
can logically be equated to murder and not pronounce itself on the merits of the argument? And if so, how far should the Court go in accepting this kind of arguments? Because many laws can be connected to a "compelling government interest" if one accepts every moral framework as legitimate - including the Texas sodomy ban.
To be honest, when it comes to judicial interpretation, I'm realizing that I lean increasingly toward the literalist approach that Conservatives profess to love (though only when it benefits them). Interpreting constitutional provisions broadly, allowing it to be a "living document" whose implications evolve based on prevailing social norms, just opens up a can of worms that only gets resolved based on one's political biases. Conservatives will take a broad view of the Second Amendment, and use the First as an excuse to allow the rich to control political campaigns. Progressives will claim that the Equal Protection Clause can be used to tear down every unjust law, and use the First Amendment to allow students to say whatever they want on school grounds. Constitutional interpretation shouldn't be just another weapon in political conflict: it should be a last resort to ensure that everyone respects the few mutually-agreed rules of the political process. I realize that it's a view that's a lot more easier to hold in theory than in practice. Being a fair interpreter of the Constitution is hard when so many cases have such a strong moral component, which is why I have a lot of respect for those, like Stevens and O'Connor, who at least tried.
