Scalia’s Dissent in Lawrence vs Texas

 

Justice Antonin Scalia’s dissent in Lawrence v. Texas was prescient in its analysis of where we were headed in a post-Lawrence world. Likewise, the reaction to last Friday’s Obergefell decision has included warnings from both the dissenters and numerous commentators that the fallout from the case could mean serious legal challenges to religious institutions and/or the necessary discovery of a constitutional right to polygamy or prostitution.

Naturally, progressives scoff (at least on the record) at such suggestions, even as we begin to see a few commentaries pop-up that make those very arguments.

To most on the Left, these are the desperate ramblings of scare-mongers who are trying to cling to the most absurd arguments still available to them in this rapidly changing world. “Pay these claims no mind,” they say. “This is just slippery-slope nonsense.” They usually then tack on a strawman about how conservatives think people will start marrying their dogs or some such thing.

But let’s go back to 2003. Scalia wrote then, in part:

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal).

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.”

Do not believe it.

He continued:

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.” (emphasis added)

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; 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,”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution?” Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Citations omitted. I encourage anyone with even a passing interest in the subject matter to read the whole thing, penned a dozen years before Obergefell.

I bring this up because it’s important to remember that the people celebrating Lawrence in 2003 were also ridiculing Scalia for his “panicked” prediction of where the law was headed. For example, Maureen Dowd mocked Scalia in the New York Times with the expected measure of derision, writing that “The stegosaurus Scalia roared that the court had ‘taken sides in the culture war.’ Conservatives shrieked the door was open to everything from lap dancing to gay marriage.” As an aside, Dowd’s keen legal mind described Lawrence thusly: “The court [sic] issued a bracing 6-to-3 decision declaring it illegitimate to punish people for who they are.”

How ridiculous Scalia was! He was certainly worthy of being called “homophobic,” “Sister Scalia,” and a “nattering nabob of negativity,” among other insults Dowd hurled to show her distaste for Scalia’s wild theories about the law.

By July, the Times had already shifted slightly. Beginning the next phase of the long road that led us to where we are today, op/eds and letters began appearing that said, in essence, “Scalia may be evil and nuts… but, just hear me out on this one… suppose we did have gay marriage. What’s the big deal?”

In fact, that’s exactly what Natalie Angier said on July 8 of that year, in an article that was actually about a scientific study on human mate selection. “Suppose that dissenting Justice Antonin Scalia was right when he fulminated recently that, by overturning the Texas antisodomy law, the Supreme Court was paving the way for ‘same-sex marriage.’ What’s the big deal about gay nuptials, besides the fact that Canada got there first?”

It seems quaint now that the Times felt the need to put quotes around “’same-sex marriage.’” The more interesting thing is that the study discussed in the article included a 100% heterosexual sample, “for reasons of analytic simplicity,” Angier tells us. And yet, she shoehorned an almost entirely unrelated matter in to this piece that was an approving, not-so-subtle statement of personal belief about gay marriage. So it went.

Justice Scalia will never get the apologies he deserves from the scores of critics who were either too short-sighted to appreciate his vision, or too dishonest to admit they suspected he and the other dissenters were—and are—prescient.

There are 30 comments.

  1. Member

    An impressive and informative essay. I remember the case, but I had forgotten Scalia’s prescience.

    Thank you.

    • #1
    • June 29, 2015 at 8:13 pm
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  2. Member
    Tom Garrett Post author

    MarciN:An impressive and informative essay. I remember the case, but I had forgotten Scalia’s prescience.

    Thank you.

    Thanks very much! I appreciate it.

    It’s amazing to review some of these old cases and see that Scalia saw exactly where this was all headed, probably at least as far back as Romer v. Evans in 1996.

    • #2
    • June 29, 2015 at 8:31 pm
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  3. Member

    Tom Garrett:

    MarciN:An impressive and informative essay. I remember the case, but I had forgotten Scalia’s prescience.

    Thank you.

    Thanks very much! I appreciate it.

    It’s amazing to review some of these old cases and see that Scalia saw exactly where this was all headed, probably at least as far back as Romer v. Evans in 1996.

    It is indeed.

    • #3
    • June 29, 2015 at 8:33 pm
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  4. Member

    It is truly scary to imagine he played the part of prophet in his dissent in Obergefell.

    • #4
    • June 29, 2015 at 8:52 pm
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  5. Member

    But likely true, Prawn. I wish Thomas and scalia (my favorite justices, obviously) were good for more than just fantastic dissents.

    • #5
    • June 29, 2015 at 11:06 pm
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  6. Member

    Rod Dreher’s law of merited impossibility: “that’s never going to happen, and boy do you deserve it.”

    • #6
    • June 29, 2015 at 11:48 pm
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  7. Coolidge

    As much as Scalia himself seems prescient, Chief Justice John Roberts seems of very myopic vision. After having undermined himself with two questionnable Obamacare decisions — the second decision occurring almost immediately prior to this one — in which he appears to be making a decision out of reasons of policy, here we read in his dissent in Obergefell that courts are not concerned with the wisdom or policy of legislation, that “The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” After his votes on Obamacare, who is going to listen to him now, when he attempts to stand on principle?

    • #7
    • June 29, 2015 at 11:51 pm
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  8. Member

    Tom Garrett:And Justice Scalia will never get the apologies he deserves from the scores of critics who were either too short-sighted to appreciate his vision, or too dishonest to admit they suspected he and the other dissenters were—and are—prescient.

    Suspect is a generous concession. The fellow who gives the game away before the final act is never rewarded, only punished.

    • #8
    • June 30, 2015 at 12:43 am
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  9. Contributor

    Tom Garrett: [quoting Justice Scalia]

    One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.

    It’s funny re-reading that after all these years; I’ve been saying for a long time that legislation and constitutional amendment are infinitely preferable solutions in these things and I’d wager that crystalized reading Lawrence all those years back.

    The silver lining is that this may come back to bite the left where they least expect it.

    • #9
    • June 30, 2015 at 5:19 am
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  10. Member

    Is it now possible to calculate the friction coefficient of the slippery slope?

    • #10
    • June 30, 2015 at 5:21 am
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  11. Member

    Or as Padre Pio once said to an individual that told him he did not believe in Hell: “You will believe it once you arrive there.”

    • #11
    • June 30, 2015 at 5:26 am
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  12. Member
    Tom Garrett Post author

    Tom Meyer, Ed.:

    Tom Garrett: [quoting Justice Scalia]

    One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.

    It’s funny re-reading that after all these years; I’ve been saying for a long time that legislation and constitutional amendment are infinitely preferable solutions in these things and I’d wager that crystalized reading Lawrence all those years back.

    The silver lining is that this may come back to bite the left where they least expect it.

    Agreed on all counts. I’ve often thought that the ire that Scalia prompts from the Left has more to do with his accuracy than it does with his tone (which, admittedly, is part of it as well).

    • #12
    • June 30, 2015 at 6:13 am
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  13. Member

    Ray Kujawa:As much as Scalia himself seems prescient, Chief Justice John Roberts seems of very myopic vision. After having undermined himself with two questionnable Obamacare decisions — the second decision occurring almost immediately prior to this one — in which he appears to be making a decision out of reasons of policy, here we read in his dissent in Obergefell that courts are not concerned with the wisdom or policy of legislation, that “The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” After his votes on Obamacare, who is going to listen to him now, when he attempts to stand on principle?

    I suspect the key difference between Scalia and Roberts is that Scalia doesn’t care a whit what the media says about him and Roberts cares immensely.

    • #13
    • June 30, 2015 at 6:25 am
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  14. Contributor

    Songwriter: I suspect the key difference between Scalia and Roberts is that Scalia doesn’t care a whit what the media says about him and Roberts cares immensely.

    Is that why Roberts dissented from the majority in Obergefell? Or why he ruled in favor of Hobby Lobby? Or Citizens United? Or against affirmative action?

    I’m disappointed and frustrated by some of Roberts recent votes, but he’s clearly willing to make unpopular rulings.

    • #14
    • June 30, 2015 at 6:41 am
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  15. Member
    Tom Garrett Post author

    Tom Meyer, Ed.:

    Songwriter: I suspect the key difference between Scalia and Roberts is that Scalia doesn’t care a whit what the media says about him and Roberts cares immensely.

    Is that why Roberts dissented from the majority in Obergefell? Or why he ruled in favor of Hobby Lobby? Or Citizens United? Or against affirmative action?

    I’m disappointed and frustrated by some of Roberts recent votes, but he’s clearly willing to make unpopular rulings.

    Yes, at the risk of sounding like a heretic to certain conservative circles, I think the case against Roberts has been overstated a bit. It seems that the ACA is one peculiar blindspot (if you want to call it that) for Roberts. Otherwise, he has largely been the jurist we expected he would be. His dissent in Obergefell was certainly not the writing of a man who was primarily concerned with how he’ll be remembered by progressive historians.

    • #15
    • June 30, 2015 at 6:46 am
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  16. Member

    Tom Meyer, Ed.:

    Songwriter: I suspect the key difference between Scalia and Roberts is that Scalia doesn’t care a whit what the media says about him and Roberts cares immensely.

    Is that why Roberts dissented from the majority in Obergefell? Or why he ruled in favor of Hobby Lobby? Or Citizens United? Or against affirmative action?

    I’m disappointed and frustrated by some of Roberts recent votes, but he’s clearly willing to make unpopular rulings.

    Point taken. But I still suspect he cares more about what the media thinks than Scalia. And that will have an effect.

    • #16
    • June 30, 2015 at 6:47 am
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  17. Member

    Songwriter:

    Tom Meyer, Ed.:

    Songwriter: I suspect the key difference between Scalia and Roberts is that Scalia doesn’t care a whit what the media says about him and Roberts cares immensely.

    Is that why Roberts dissented from the majority in Obergefell? Or why he ruled in favor of Hobby Lobby? Or Citizens United? Or against affirmative action?

    I’m disappointed and frustrated by some of Roberts recent votes, but he’s clearly willing to make unpopular rulings.

    Point taken. But I still suspect he cares more about what the media thinks than Scalia. And that will have an effect.

    The hypothesis that explains Roberts votes is that he won’t rock the boat. There’s a certain safety in the status quo even when the media wants it overturned.

    • #17
    • June 30, 2015 at 7:02 am
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  18. Member

    Guruforhire:Is it now possible to calculate the friction coefficient of the slippery slope?

    It’s important to address people who shout “slippery slope fallacy!” when we talk about this. The point is not that we are certain polygamy will unfold just like SSM. It’s that no one on the left has a principled argument why the two should be treated differently.

    In fact, its possible to imagine elite opinion will stop short of endorsing polygamy. (Although I can imagine it going either way.) There is one practical difference with polygamy, in that we have thousands of years of history in seeing what polygamy does to cultures. As of now we have thousands of days of experience with SSM. The signs are not encouraging but are still debatable.

    • #18
    • June 30, 2015 at 7:10 am
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  19. Member

    I would add that polygamy, if it comes, will be presented not as the old model, which was the sheik and his twenty wives, but rather Adam and Eve and Steve. But at that point you’re just one step away to making Openness the norm, with lifelong commitments limited to the Amish and a few kooks like that. (That last is me parodying the radical left viewpoint, btw.)

    • #19
    • June 30, 2015 at 7:14 am
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  20. Member
    Tom Garrett Post author

    Fredösphere:

    Guruforhire:Is it now possible to calculate the friction coefficient of the slippery slope?

    It’s important to address people who shout “slippery slope fallacy!” when we talk about this. The point is not that we are certain polygamy will unfold just like SSM. It’s that no one on the left has a principled argument why the two should be treated differently.

    This is the key.

    I happen to be an attorney, and I happen to have a conlaw-heavy educational background. When I say that it is easy for me to imagine that a court relying on Lawrence (and, now, Obergefell) will strike down an anti-polygamy law, I’m often met with tut-tutting from progressives who say that such a suggestion is preposterous.

    But, when I ask them to identify a solid legal principle that is consistent with these cases and allows us to draw a bright line between laws banning polygamy and laws limiting marriage to opposite-sex couples, they cannot do so.

    • #20
    • June 30, 2015 at 7:50 am
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  21. Member

    Isn’t there an established legal doctrine that government may not engage in viewpoint discrimination? For example, it would not be able to withhold tax credits or government contracts merely based on an institution’s view on marriage? Viewpoint discrimination is basically what the IRS did in the scandal about the conservative non-profits.

    We keep hearing how this court ruling is a threat to freedom of religion and conscience, but it seems that those threats were already present. Mainly from state laws, since sexual orientation is not covered under federal civil rights laws if I’m not mistaken. So it doesn’t seem that anything in this ruling directly affects the situation regarding religious freedom. Someone could still fire someone for being gay and there wouldn’t be any federal recourse, and even state recourse except in some states. Not to mention refusal to bake cakes.

    • #21
    • June 30, 2015 at 8:12 am
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  22. Member

    Be advised resisting the extermination of dissenting viewpoints is a hatecrime. I don’t expect to have any extra room in the ‘ole family bunker so y’all really should be working on your own.

    Speaking of depressing but probably prescient comments:

    I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.

    -Francis Cardinal George (1937-2014) Archbishop of Chicago speaking to an assemblage of priests in 2010.

    • #22
    • June 30, 2015 at 8:24 am
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  23. Member
    Tom Garrett Post author

    Bob Wainwright:Isn’t there an established legal doctrine that government may not engage in viewpoint discrimination? For example, it would not be able to withhold tax credits or government contracts merely based on an institution’s view on marriage?

    See Bob Jones University v. United States

    • #23
    • June 30, 2015 at 8:26 am
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  24. Member

    Another great example of Scalia setting the curve is his dissent in Morrison v. Olson from the late-1980s. His criticism of the independent counsel statute appeared prescient not quite ten years later.

    • #24
    • June 30, 2015 at 8:49 am
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  25. Member

    Tom Garrett:

    Bob Wainwright:Isn’t there an established legal doctrine that government may not engage in viewpoint discrimination? For example, it would not be able to withhold tax credits or government contracts merely based on an institution’s view on marriage?

    See Bob Jones University v. United States

    Thanks. That involved racial discrimination which is in federal civil rights law. Sexual orientation isn’t right? It seems that at a minimum sexual orientation would have to be added to federal law before something like that case could happen with respect to SSM. Obergefell doesn’t do that.

    • #25
    • June 30, 2015 at 8:52 am
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  26. Member
    Tom Garrett Post author

    Bob Wainwright:

    Tom Garrett:

    Bob Wainwright:Isn’t there an established legal doctrine that government may not engage in viewpoint discrimination? For example, it would not be able to withhold tax credits or government contracts merely based on an institution’s view on marriage?

    See Bob Jones University v. United States

    Thanks. That involved racial discrimination which is in federal civil rights law. Sexual orientation isn’t right? It seems that at a minimum sexual orientation would have to be added to federal law before something like that case could happen with respect to SSM. Obergefell doesn’t do that.

    I think it’s almost a given that sexual orientation will be formally included in all federal anti-discrimination law within the next decade. It’s already halfway there through regulatory action and executive order (the propriety of which is a separate topic).

    The point is: If we think that the application of Bob Jones will be prevented by the fact that there is no federal law that is framed precisely the same as anti-discrimination law based on race, prepare to be disappointed.

    • #26
    • June 30, 2015 at 8:59 am
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  27. Member

    The Equal Rights Amendment never passed because of concerns it was a Trojan horse to allow all kinds of unforeseen mischief by courts. Now that Obergefell has been decided as it has, I suspect any attempt now to add sexual orientation will be viewed with the same suspicion. But you’re right, if courts and regulators don’t believe they need legislative authorization, then it doesn’t matter. The gay lobby won’t accept anything short of being treated with the same deference as racial discrimination is. There’s no freedom of religion exception for that, and allowing it for sexual orientation is interpreted by the gay lobby as being treated as a second class citizen even in victory.

    • #27
    • June 30, 2015 at 9:38 am
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  28. Member

    Bob Wainwright:The Equal Rights Amendment never passed because of concerns it was a Trojan horse to allow all kinds of unforeseen mischief by courts. Now that Obergefell has been decided as it has, I suspect any attempt now to add sexual orientation will be viewed with the same suspicion. But you’re right, if courts and regulators don’t believe they need legislative authorization, then it doesn’t matter. The gay lobby won’t accept anything short of being treated with the same deference as racial discrimination is. There’s no freedom of religion exception for that, and allowing it for sexual orientation is interpreted by the gay lobby as being treated as a second class citizen even in victory.

    “Zeitgeist Tony” Kennedy has already put race and sexuality in the same analytical category. Resistance will be legally futile.

    As for polygamy, if it can be shown that Johnny and Suzy suffer school teasing because they have 3 daddies and 11 mommies, the “dignity” of the group “marriage” will need to be protected by SCOTUS. What possible legally cognizable argument in opposition could there be after Obergefell?

    • #28
    • June 30, 2015 at 11:09 am
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  29. Member
    Tom Garrett Post author

    Meanwhile, over at Gawker Media, this is how they describe Scalia’s dissent in an article about Jon Stewart’s usual EVISCERATION of whatever topic he tackles:

    Last Friday, the Supreme Court ruled to recognize same-sex marriages nationwide, much to the delight of a whole lot of people. Except of course, resident crank Justice Antonin Scalia, who wrote a dissent that, from most reasonable folks’ perspective, sounded like nonsense.

    Emphasis mine.

    “Most reasonable folks” don’t simply disagree with the dissent. They think it’s nonsensical!

    Just like in 2003. And we know how that turned out.

    (I freely admit that I laughed at “Human Dissentipede,” however)

    • #29
    • June 30, 2015 at 12:28 pm
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  30. Member

    Tom Garrett:Meanwhile, over at Gawker Media, this is how they describe Scalia’s dissent in an article about Jon Stewart’s usual EVISCERATION of whatever topic he tackles:

    Emphasis mine.

    “Most reasonable folks” don’t simply disagree with the dissent. They think it’s nonsensical!

    Just like in 2003. And we know how that turned out.

    (I freely admit that I laughed at “Human Dissentipede,” however)

    If only Jon Stewart would dare to have Scalia on his show to defend himself. There would be very little of Jon Stewart left afterwards, I think.

    • #30
    • June 30, 2015 at 12:54 pm
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