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A look back at Justice Scalia’s dissent in Lawrence v. Texas, nine years later

Marriage equality

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.

Scalia writes:

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.

38 Comments

  • 1. Michelle Evans  |  June 26, 2012 at 2:16 pm

    Both Scalia and Thomas have shown disdain for the actual Constitution they have supposedly sworn to uphold. This is certainly in clear evidence in this opinion by Scalia, along with many others since then from both of these "justices." Thomas specifically has had an ongoing investigation into his ethics with regard to certain SCOTUS cases, yet nothing has come of the idea of having him impeached from the bench as allowed by law. Both of them should go. Period. What needs to be done to start the impeachment process?

  • 2. Scottie Thomaston  |  June 26, 2012 at 2:34 pm

    Realistically they'll only be replaced when they retire or pass away. And I'm not sure how much Justice Thomas loves being a Justice, but Scalia will certainly not be retiring any time in the near future.

    And there isn't much else that can be done because the Justices don't have to abide by the same rules lower court judges do. Barring some massive scandal where a ton of evidence is found and the public outcry is intense, I think we're probably stuck with them.

  • 3. MFargo  |  June 26, 2012 at 3:14 pm

    Robert Houghwout Jackson’s aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final.”

    And that’s why the politicization of SCOTUS is such a miserable mistake….

  • 4. Mike in Baltimore  |  June 26, 2012 at 3:23 pm

    Thomas has stated that he wants to be the longest serving justice on SCOTUS.

    The current 'longest-servng' ever justice is William O. Black, who served 13,358 days (April 17, 1939 – November 12, 1975 (more than 36 years). Thomas was sworn in as an Associate Justice on October 23, 1991, and has now served 7,551 days (or 5800 +/- days fewer than the current 'record holder).

    If Thomas wants to break Black's record, we'll have to put up with him for another more than 15 years. Let's hope Black's record is not broken by Thomas.

  • 5. Matt  |  June 26, 2012 at 3:24 pm

    So, when a case comes before SCOTUS that addresses marriage equality, can Scalia say "I still disagree with Lawrence and I think a moral objection to homosexuality is a valid rational basis", or is he obliged to "fall in line" with the decision in Lawrence (i.e. he would no be able to use morality as a basis, and unless he wanted to look like a fool and go back on his statement in Lawrence, would then have to vote in favor of marriage equality)?

  • 6. Bill S.  |  June 26, 2012 at 4:00 pm

    A quick correction: The Supreme Court issued a summary *affirmation*, not a summary reversal in Baker v. Nelson. The Supreme Court upheld the Supreme Court of Minnesota's decision that same-sex couples do not have a right to marry, they did not reverse a pro-gay decision from the Minnesota Supreme Court.

    Also, going by Scalia's dissent ("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.) are there seriously state laws against masturbation?? And Scalia would like to uphold them??

  • 7. Bill S.  |  June 26, 2012 at 4:03 pm

    The Supreme Court is not obliged to follow any precedent. They can overturn their own prior decisions. So Scalia could still say that moral disapproval is a rational basis to uphold a law.

  • 8. SoCal_Dave  |  June 26, 2012 at 4:15 pm

    I am also amazed that there would be laws against masturbation, and that Scalia would think they should be upheld. Wow. I guess it shows just how puritanical and out of touch he is.

    Wouldn't it be something, though, if he voted against DOMA just to so he could say "See? I TOLD you it would lead to this!"

    Not likely, I suppose, but as Matt says, he looks like a fool if he goes back on his own statement. Then again he looks like a fool regardless.

  • 9. Leo  |  June 26, 2012 at 4:24 pm

    According to a quick search, Alabama prohibits sale of masturbation aids. Alabama Supreme Court upheld it in 2009 citing enforcement of public morality as a rational justification. Haven't found anything prohibiting masturbation per se.

  • 10. Matt  |  June 26, 2012 at 4:33 pm

    That makes sense. I guess I thought they might give their previous judgements some level of deference?

    If not, then Scalia's dissent in DOMA could be nice and short:

    I think being gay is immoral, as in Lawrence, and that's a rational basis to uphold DOMA.

  • 11. Scottie Thomaston  |  June 26, 2012 at 5:32 pm

    He can say whatever he wants unfortunately.

    For example he rails against "substantive due process" and thinks cases asserting SDP rights are invalid, and then in McDonald v. Chicago, he voted in favor of the SDP decision. So… yeah.

  • 12. Scottie Thomaston  |  June 26, 2012 at 5:34 pm

    You are correct, whoops, I changed it. I knew that, so I have no idea why I typed it. Must have Montana on the brain.

  • 13. Scottie Thomaston  |  June 26, 2012 at 5:36 pm

    Yeah, I live in AL. We still ban sex toys.

  • 14. Drpatrick1  |  June 26, 2012 at 6:04 pm

    I first started reading dissents with this decision. To this day, I occasionally listen to conservative radio for the same reasons. It is interesting to know what the other side is thinking, and this can help sway the opposition to your side. With the only exception that he believes one persons moral beliefs is enough to, in his words, punish another person, who likely does not share those "moral" beliefs, I agree with everything he wrote. What better brief can be written IN SUPPORT OF marriage equality, than Scalia's dissent!

  • 15. bayareajohn  |  June 26, 2012 at 6:08 pm

    I shocked he didn't instead go the "public decency" route on rational basis – most nudity and public sex laws would probably fall under the failure of any basis but moral disapproval. That line is harder to intellectually dismiss than the examples he did pull out, masturbation notwithstanding.

  • 16. Mike in Baltimore  |  June 26, 2012 at 6:35 pm

    Amazing, since women's 'masturbatory aids' was a prescription during the post-(US) Civil War 19th century. Doctors were of the belief that if women masturbated, they would be less apt to get the 'scourge' of 'hysteria'.

    Thinking about it though, the prescriptions were for women, and Alabama is still basically a misogynistic society. So the prohibition on masturbation aids law is not at all surprising when that little factoid is factored in.

  • 17. Bill S.  |  June 26, 2012 at 6:57 pm

    Wait actually I was wrong too. The Supreme Court dismissed the appeal for "want of a substantial federal quesiton" which makes it a summary *dismissal* not a summary affirmation. The Supreme Court neither affirmed nor denied the Minnesota Supreme Court's ruling but rather only that it did not propose a federal question.

  • 18. Gregory in SLC  |  June 26, 2012 at 7:23 pm

    Growing up in Utah, I lived my teenage years and later as a father feeling guilty about the m. word as our church leaders would corral us twice a year in "priesthood shaming" meetings. I remember trying to follow Elder Vaughn Featherstone's advice and failing again and again and feeling "unworthy" or "immoral".
    http://exmormon.org/phorum/read.php?2,451744,4517

    For those of you trying to overcome "sins of the flesh" here is a training video for you ; )
    [youtube x0BNz02JQN4 http://www.youtube.com/watch?v=x0BNz02JQN4 youtube]

  • 19. Jamie  |  June 26, 2012 at 7:26 pm

    No, it's a back massager. Don't you watch SATC?

  • 20. Steve  |  June 27, 2012 at 2:39 am

    Don't you allow them for things like "research", "law enforcement" and some other reasons? So now when people buy them they just have a quick laugh and say it's for research or something. I'd like to know what a law enforcement purpose for sex toys is though…

  • 21. Steve  |  June 27, 2012 at 2:42 am

    Vibrators were actually invented because doing it manually became too tiresome for the doctors. Having mechanical help put less strain on their hands and allowed them to get more patients in – that is make more money which it was all about.

    Btw, they believed that women climaxing that way was a purely physical reaction, that had nothing to do with real orgasms or pleasure.

  • 22. Steve  |  June 27, 2012 at 2:43 am

    So then why can it be a precedent in the whole country? I don't get it

  • 23. Steve  |  June 27, 2012 at 2:45 am

    Of course half the time he rants against the other justices and some things have a clear sarcastic undertone. He isn't actually serious about the last paragraph. That part drips with sarcasm and disdain. Which is why he will say that he was only speaking hypothetically or something like that.

  • 24. Bill S.  |  June 27, 2012 at 5:24 am

    The dismissal is a decision on the merits because it was brought to the court under mandatory appellate review, not discretionary certiorari.

    I believe that Congress has since changed the law and that now all cases are brought to the Supreme Court under discretionary certiorari (i.e. the Supreme Court can pick and choose which cases it wants to hear), other than what is listed in the Constitution as the Supreme Court's original jurisdiction (i.e. the types of cases that go directly to the Supreme Court without going to any lower court).

  • 25. MFargo  |  June 27, 2012 at 6:26 am

    Earlier this month, the Vatican attacked U.S. nuns for teaching that masturbation is useful, same sex marriage helpful, divorce often necessary. The Vatican said ""Sister Farley [and her book] manifests a defective understanding of the objective nature of the natural moral law. This approach is not consistent with authentic Catholic theology."

    Heard that before? If we can get our judiciary who are Catholic to accept that same sex marriage is as much a cultural norm as divorce then we can breathe more easily. However, as Judge Walker pointed out, we're much more of a minority and are at the whims of the majority. (Although perhaps arguing that masturbation AND divorce are culturally acceptable, but with some of these judges, I wouldn't want to presume.)

  • 26. AnonyGrl  |  June 27, 2012 at 6:31 am

    Let us in the rest of the sane world know if you need some, Scottie. I am sure we would be happy to smuggle some in to you. :)

  • 27. sfbob  |  June 27, 2012 at 9:35 am

    Scalia has proven, repeatedly, that he won't let a simple thing like consistency get in the way of his reaching the conclusion he prefers, any more than he'd let precedent or the Constitution get in the way of his favored outcomes.

  • 28. arjay1951@mac.com  |  June 27, 2012 at 1:40 pm

    "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."
    –Ralph Waldo Emerson
    Sometimes quoted as
    "A foolish constancy is the hobgoblin of small minds…"
    Scalia undoubtedly know the quote and would be unafraid to use it if necessary. But since he feels unbound by precedent or even canons of judicial ethics,, why should he feel bound by a dissent?
    And please, let us not get into a debate over whether his mind is "small" or "little.". Bottom line is that he can do what he wants.

  • 29. Don  |  July 9, 2012 at 3:45 pm

    That's why I knew that the ACA would be upheld; I read all the conservative legal web sites. They were all terrified that it would be overturned. The insurance companies were pissing and moaning about possibly losing 30 million new customers. Prof. Volokh at UCLA said; "If you think the reputation of the Court was diminished after Bush v. Gore, you haven't seen anything yet if the Court overturns the ACA.

  • 30. Greg  |  October 11, 2012 at 6:42 pm

    Trust me, Romney has assigned not ever Justice Robert Bork to oversee Supreme Court nominations. If Romney is elected, he will appoint hard core consersavtives to replace Ginsberg, Kennedy and possibly Breyer. Then Lawrence v. Texas will be overturned and Bowers v. Hardwick reinstated. That means gays can be sent to prison for engaging in sex and denied employment as "potential felons". How soon we forget the past.

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