Scalia in Lawrence V. Texas

Not that I’ve been reading supreme court opinions or anything but Scalia’s dissenting opinion basically says that the decision in Lawrence V. Texas means that Same Sex Marriage should be legal.  Excerpts below, bolding by me.

Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

[…] This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

[…] One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

[…] 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.” Ante, at 13 (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, 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; 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. 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.
Full horrifying opinion here, where he says he’s got nothing against the gays, he just thinks they’re going to hell. 

Scalia in Lawrence V. Texas

15 thoughts on “Scalia in Lawrence V. Texas

  1. 1

    I do not find Scalia’s opinion horrifying in the least. I do find the majority opinion to be horrifying though and for the same reason Scalia seemed to. The court through the law out the window in order to render a judgment that still didn’t address the underlying issues from a legal standpoint.

    You have to remember that the Court is not about justice; it’s about the law. Judicial activism is wrong and damaging, irrespective of which side of the fence engages in it.

  2. 2

    Yes, I was and am. I was, however, very happy when the underlying laws were changed by the Legislature – those charged with creating law under the Separation of Powers – and admit that it too long for people to realize that “separate but equal,” while excellent in theory, was impossible in practice due to graft, greed, and bigotry that prevented any sort of equality in that separation.

    1. 2.1

      I’m all for “activism” when it is upholding the principles in the Constitution.

      It is my opinion that a strict interpretation of the Constitution, specifically the 14th Amendment, applies to homosexuals as a suspect class deserving protection under the Equal Protection Clause. The 14th Amendment, written before Plessy V. Fergusson, undermines completely the decision made there, and Brown V. Board of Education finally recognized that the previous case had been bending the law because of prejudices of the court.

      So I must vehemently disagree with your assertion that Plessy was not directly opposed to the Constitution. I’m afraid I must also disagree and be a little disgusted with the idea that “separate but equal” was ever excellent in theory.

      I agree with Scalia when he says that Constitutionally there is no basis for discriminating against homosexuals in the law, and I am also disappointed in the court for not following their decision to it’s logical conclusion, which is that homosexuals deserve equal protection, like Loving V. Virginia.

      1. Well there’s part of the problem. You’re in favor of “activism” and don’t seem to understand that it doesn’t uphold the principles in the Constitution because it violates the very Constitutional principles that defined the allowed role of the Court.

        And no, Plessy was not against the Constitution in letter or in spirit; the underlying laws were.

        I maintain that it is not the Court’s role, duty, or privilege to remake law. That, for good or ill, is reserved for the elected Legislature.

        1. I’m sorry but you’re just wrong.

          “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” — Alexander Hamilton

          The highest calling of the Supreme Court is to make sure that no law contradicts the Constitution. This is, in fact, the job called for by the framers. So if you don’t think the Constitution is important or you don’t think laws should be enacted within the bounds of it, move to the Netherlands*. We’re a Constitutional Republic, our laws have to obey our Constitution, and when they don’t, it is the role of the Judiciary to make sure they’re struck down. That’s been the role of the Judiciary since the beginning of the Republic. Balance of power, checks and balances, surely you remember some of this from a middle school civics class?

          “The United States is unique as the sole country in which federal and state courts, at all levels (appellate and trial) are able to review and declare the constitutionality (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, “judicial review” refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States.”

          So, if by activism you mean I want the laws of the land to be legal under the American Constitution, then that’s what I must be.

          *Article 120 from The Netherlands Constitution: The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.

          1. No, Miss. You’re the one who is wrong and poorly quoting Hamilton in process.

            It is solely the purpose of the Court to interpret the existing laws, not to throw them by the wayside or draft new ones from the bench. If they find that the law in question violates the Constitution,then they should act upon that fact instead of rendering decisions that violate that standing law in the circumstance at hand while leaving the unconstitutional in place.

            The Court’s decision in Lawrence violates that very simple set of duties and should be abhorred by all people.

          2. Please do not disrespect me by referring to me as “Miss”, thank you.

            It is an accurate quote from Hamilton.

            Regardless of your interpretation of the Constitution in Lawrence, it is the purview of the court to decide the Constitutionality of law. I rather trust SCOTUS to be better informed on that than you.

  3. 3

    Have you read Clarence Thomas’s solo dissent? It’s two paragraphs long. In it, Thomas says that he basically disagrees with everything he just joined, because the law in question was a stupid law (Thomas quotes a dissent in Griswold v. Connecticut and calls the law “uncommonly silly”).

    Thomas’s dissent could easily have been tucked into Scalia’s main dissent. And yet Scalia didn’t put it in. At Lawyers, Guns, and Money, Scott Lemieux thought that Scalia didn’t put in Thomas’s dissent because he (Scalia) didn’t agree that the law was “uncommonly silly” (cite).

    1. 3.1

      I’ve read through all the opinions. Scalia is fairly horrifying in his personal beliefs and they obviously color his opinion. I don’t think he thought it was a silly law, I think he thought it was a perfectly good law and that telling people not to be fags was a reasonable thing for everyone in the universe to do, because how is that discriminatory?

      Having checked out that link, I agree completely with that opinion — Scalia is incredibly homophobic. Bizarrely, that homophobia has given him a clarity of vision of how his side might lose, which he details in his opinion here. It’s sort of like a guide to how the homosexual agenda is going to defeat him and his petty views.

      Thanks for the comment, and the link, I’m following your blog now 🙂

  4. 4

    What Plessy has really taught us is that the proper reading of “equal” is not “equivalent” but “indistinguishable”. Civil rights are not fungible commodities.

  5. 5

    In what way is it not the Court’s duty to “throw by the wayside” laws deemed unconstitutional? In what other manner are they intended to act? While not quite since the birth of the Republic, ever since Marbury it has been the Court’s prerogative to strike down laws that do not meet the test of Constitutionality – to send it back to the legislature for rewriting. If the legislature chooses not to rewrite the law, that can only be interpreted as a tacit admission that the attempted regulation was not in keeping with the spirit or letter of the Constitution. No serious attempt has been made to legislate or amend the Constitution in the face of the Lawrence decision.

    It is not the duty of the judicial to simply read statutes and interpret “what congress meant”. The Court does not work for Congress. Like Congress, it works for the People, and its ultimate guide in doing so is the Constitution. What other defense do the People have against repressive, oppressive or tyrannical legislation? The Fourteenth Amendment does not guarantee equal protection under the law, but equal protection of the law. It is the equality of law that is suspect.

    For me, the key to Scalia’s dissent in Lawrence (simply based on what caught my eye), is his concern that it would overturn state-level precedent that it was permissible for legislatures to regulate morality irrespective of demonstrable harm. There is, to my mind, only one source of moral dictation outside of the harm principle, and it is expressly forbidden for Congress to pass laws based solely on religious grounds.

    The final truth of the matter for me is this: putting the equal protection of law up to a majority referendum is a contradiction in terms. No legal justification has been given to restrict marriage rights – that it makes people uncomfortable is irrelevant. No demonstrable harm has been proven. The Constitution calls upon us and our government to secure the blessings of liberty for ourselves and our posterity. Like it or not, in this country, under this Constitution, the disapproval of God Almighty is insufficient to deny equality of liberty to all citizens.

  6. 6


    “It is solely the purpose of the Court to interpret the existing laws, not to throw them by the wayside or draft new ones from the bench. If they find that the law in question violates the Constitution,then they should act upon that fact instead of rendering decisions that violate that standing law in the circumstance at hand while leaving the unconstitutional in place.”

    Following this idea means throwing out the whole idea of Common Law. Under Common Law, judges make the law. That’s what case law is. Last time I checked, the US (and basically most English-speaking countries) are entirely or wholly Common Law jurisdictions.

  7. 7

    Young master, your comment is internally inconsistent. You say the Court cannot toss out unconstitutional laws. Yet you say it is a failure of the Court to address circumstantial issues while leaving unconstitutional laws on the books. Make up your mind, please.

  8. 8


    You misunderstand me or I have not made myself sufficiently clear.

    The Court, if they’re going to render a decision upon a case – especially when functioning as Appellate Court – is supposed to limit itself to abiding by the laws as they are written. They are not supposed to “legislate” from the bench by rendering decisions and creating precedents – Rob F’s Common Law – that go against the existent statutes.

    It is a different matter if they find that those statutes are unconstitutional. In that case, it is their duty to strike down the statute in question, returning it to the Legislature to be rewritten or abolished.

    In the case of Lawrence V. Texas they should have done on of those two things instead of what they did.

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