Supreme Court Upholds Separation of Powers in Texas Case
An important ruling in the last-minute deluge of Court decisions deserves appreciation.
In another final-day ruling affirming the constitutional separation of powers, the U.S. Supreme Court upheld the constitutionality of a Texas law requiring websites that purvey sexual content to verify that their visitors are adults. The Wall Street Journal reports:
In a 6-3 decision, the court upheld the Texas law, which is among more than 20 that have passed by states in recent years requiring age verification for users seeking to access pornographic content online.
“The power to require age verification is within a state’s authority to prevent children from accessing sexually explicit content,” Justice Clarence Thomas wrote for the court’s conservative majority.
One might well describe “the court’s conservative majority” as “the court’s majority” and leave it at that, but evidently the temptation is too great when the justices rule against pornographers and other heroic nonconservatives. As to the premises behind the decision, the Journal story notes that the majority found the Texas law to be consistent with others that have already been accepted as constitutionally sound:
The state has argued that it was imposing the same kind of legitimate restrictions on pornographic content in the digital realm as there already are for similar content peddled by bricks-and-mortar retailers.
Thomas noted in his opinion that the need for age verification online was even greater than in person.
“Unlike a store clerk, a website operator cannot look at its visitors and estimate their ages,” he wrote. “Without a requirement to submit proof of age, even clearly underage minors would be able to access sexual content undetected.”
The minority judges, no pun intended, argued that the law should have been more finely tailored to avoid impeding any Texas adult’s access to revenge porn videos and other such important “speech,” under the legal principle of strict scrutiny. “To survive strict scrutiny, a law must be narrowly tailored, advance a compelling government interest, and be the least restrictive option available,” the Journal reports.
The majority applied rational basis review instead, which requires only a legitimate state interest for a law to stand. Instead of quibbling over whether the law could have been written more precisely to the minority justices’ liking (if the minority was in fact
sincere in its arguments and not just looking for any old excuse to strike it down), the majority rightly allowed the Texas legislature, the governor, and the state’s voters to decide the matter.
The Court rejected legislation from the bench, in favor of legislating by … the legislature. That is exactly what respect for the separation of powers requires.