June 26, 2012
By Scottie Thomaston
On June 26, 2003, the landmark gay rights case Lawrence v. Texas was decided by a vote of 6-3. Justices Kennedy and O’Connor joined the more liberal justices in striking down Texas’ anti-sodomy statute. There were two written dissents; one came from Justice Thomas saying that while he believes “[p]unishing 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 nonetheless would not have ruled the law unconstitutional, because he claims he is not “empowered to help petitioners and others similarly situated[.]”
The other was written by Justice Scalia and was joined by Justice Thomas and Chief Justice Rehnquist.
Scalia’s dissent is largely an expression of anger at the Court’s willingness to uphold abortion rights in an earlier case, Planned Parenthood v. Casey, while not showing the same ‘respect for precedent’ in his view in the Lawrence case. In the process, though, Justice Scalia warns of the impending dangers of same-sex marriage he foresees as a result of the outcome in Lawrence. Attempting to establish a parade-of-horribles argument against overturning the odious precedent Bowers v. Hardwick, Scalia writes:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
Putting aside the question of whether the right to marry belongs in the same category as the other activities discussed in the passage, it’s interesting that Justice Scalia seems to believe that laws against same-sex marriage are “only” sustainable if Bowers remains good law and if morality can be a rational basis, by itself, for a constitutional law. He then goes further, and suggests that these laws won’t even pass rational basis review, the standard that allows most laws to survive constitutional review:
If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
Moving on to an attack on Justice O’Connor’s concurring opinion, in which she would have invalidated the sodomy law on Equal Protection grounds rather than Due Process grounds, Justice Scalia admits that even if a law targets people based on their sexual orientation, it is still subject to the same “rational basis” – that sexual morality is a perfectly fine basis for a law:
Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
But again, since the Court says “traditional morality” is not in itself a rational basis, Scalia is suggesting that the opinion opens the door for same-sex marriage. In fact, Justice O’Connor’s concurring opinion suggests that laws upholding “traditional marriage” of opposite-sex couples might be constitutional, to which Justice Scalia replies:
But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.
And moral disapproval, as Scalia notes, is not a rational basis for a law under the Romer/MorenoCleburne standard of rational basis review “with bite.”
Justice Scalia discusses the “homosexual agenda” and how law professors are a part of it and writes that the goal is to “eliminat[e] the moral opprobrium” attached to being gay or lesbian. He then writes:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
It’s interesting evidence he provided to show that being pro-gay is not mainstream. He points to the fact that there is no Employment Non-Discrimination Act (ENDA), that Don’t Ask, Don’t Tell exists, and that the Boy Scouts have an anti-gay policy. Of course now, in 2012, LGBT people can now file employment discrimination complaints with the EEOC, gays and lesbians can now serve openly in the military, and a proposal is being introduced for the Boy Scouts to consider revising their policy. So, perhaps there are some other justifications or reasons to suggest we should continue punishing gays and lesbians, but these excuses seem to be diminishing by the day.
When this opinion issued, there were no states with marriage equality. There were significantly less states with employment protections and there were even less companies and corporations willing to protect LGBT employees or offer domestic partner benefits. There were no decisions striking down any laws against marriage equality, and while the Defense of Marriage Act existed, it was not relevant to the discussion since it only became useful after Massachusetts enacted marriage equality through their state courts. So, it’s incredibly difficult to find any justifications to continue discrimination against gays and lesbians.
Citing Canada’s marriage equality law, Scalia writes:
At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
This “progression of thought” is evident from way back when the Court decided Griswold and the cases that came after it. The Court’s main excuse has been that there is no reason for the federal government to get involved in the marriage question – that’s essentially what its summary affirmance in 1972’s Baker v. Nelson held, but Bowers itself put an end to that. The Court addressed gay rights in that case; though they didn’t rule in favor of gay rights, they opened the door to the Court’s involvement in questions related to the freedom and equal protection of gays and lesbians.
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6;
Indeed this dissent lays out fairly well the ridiculous nature of the arguments against marriage equality. Scalia says himself that laws banning marriage equality can no longer pass rational basis scrutiny, that tradition and moral disapproval are now improper bases for laws, and that those were the only existing reasons for banning marriage between gays and lesbians. He even suggested this is true whether it’s under Justice Kennedy’s Due Process analysis or Justice O’Connor’s Equal Protection analysis.
He managed to hit on virtually every single argument that is used today. For his last argument, he even suggests that “procreation” is not a rational basis:
what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
I do agree with him there; I don’t know what other justifications there may be, either.