I’m using the word “matter” in two different senses, obviously. The point is that even an unconstitutional statute can “matter” in terms of the signals it sends out to the group who is the law’s target, even though it can’t legally matter.
In this week’s column, I explore the issue as it applies to interracial marriage and sodomy laws. The motivating event for the piece was the decision by a couple of Kansas legislators to strike a proposed amendment that would have removed the now-unenforceable ban against sexual intimacy by two people of the same sex.
Justice Kennedy’s admonition in Lawrence v. Texas is particularly apt here:
“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”
That’s no less true when the law can’t be enforced.