Tag Archives: Antonin Scalia

June 26, 2003 (a Thursday)

Scales of Justice

On this date, the U.S. Supreme Court decided the case of Lawrence v Texas (539 US 558). This landmark ruling (6 to 3) struck down a Texas law that prohibited sodomy (that is, anal sex) between same sex couples. The Court had previously addressed the same issue in 1986 in Bowers v Hardwick (478 US 186), where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

The case arose when police received an anonymous tip of a disturbance in an apartment. The police went to and entered the apartment and discovered two men engaged in homosexual activity. The men were arrested and convicted under a Texas law that prohibits “deviate sexual intercourse.” They were fined $200. The Texas Court of Criminal Appeals affirmed their convictions and rejected challenges to the Texas law based on both privacy and equal protection.

Justice Anthony Kennedy, writing for the majority, held that the right to privacy protects a right for adults to engage in private, consensual homosexual activity. He said that this right is protected under the word “liberty” in the due process clause of the Fourteenth Amendment, and is not trivial. Kennedy wrote:

The Court began its substantive discussion in Bowers as follows: ‘The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.’ That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse…

When 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. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Justice Kennedy expressly analogized to Supreme Court precedents protecting the right to purchase and use contraceptives and the right to abortion as aspects of privacy. The Court concluded that:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

Justice O’Connor, who had voted with the majority in Bowers, concurred in the judgment in Lawrence but said that she would not overrule Bowers. Instead, she would invalidate the Texas law because it applied only to same-sex couples. For her, the Georgia law in Bowers was different because it applied both to opposite-sex and same-sex couples. In some ways, O’Connor’s opinion was broader than the majority’s, for as Antonin Scalia noted in dissent, it explicitly cast doubt on whether laws limiting marriage to heterosexual couples could pass rational-basis scrutiny. O’Connor explicitly noted in her opinion that a law limiting marriage to heterosexual couples would pass the rational-basis test as long as it was designed to preserve traditional marriage, and was not simply based on the state’s dislike of homosexual persons.

However, O’Connor does not explain how a law limiting marriage to heterosexual couples could be designed to “preserve” (whatever that means) traditional marriage WITHOUT being motivated by the state’s dislike of homosexual persons. Furthermore, if a state provides nearly all the benefits of marriage to same-sex couples but calls it “civil union” or “domestic partnership”, its duplicity and prejudice become even more obvious by refusing to allow them to marry.

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented. He said, with his characteristic hyperbole and hysteria, that the Court was not justified in overruling the precedent of Bowers v. Hardwick. Scalia’s dissenting opinion argued that states should be able to make the moral judgment that homosexual conduct is wrong and embody that judgment in criminal statutes. He also averred that 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.

However, Scalia’s assertion is NOT true — proscribing adult incest can be justified on medical grounds, since children produced by such activity are more likely to suffer genetic disorders, and proscribing bestiality can be justified on grounds of animal cruelty. Also, it logically follows from Scalia’s reasoning that states should be able to make the moral judgment that interracial marriage is wrong and embody that judgment in criminal statutes – except that the Supreme Court has previously ruled those laws unconstitutional as well.

With Lawrence, Scalia concluded, the Court “has largely signed on to the so-called homosexual agenda.” While Scalia said that he has “nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” Scalia argued that the Court has an obligation to decide cases neutrally. 

Of course, Scalia’s use of the term “agenda”, implying that the action against Texas is part of a wider, covert effort to legalize the activities he mentions above, debases homosexual persons, and his protestation that he has nothing against them only confirms his bias, or at least makes his self-professed neutrality suspect.

May 20, 1996 (a Monday)

Scales of Justice

On this date, the US Supreme Court issued its opinion in the landmark case of Romer v. Evans (517 US 620), declaring unconstitutional an amendment to the Colorado state constitution that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. In its ruling, the Court made clear that moral disapproval does not justify governmental discrimination and shattered the “special rights” rhetoric of those who oppose equal treatment for lesbian, gay, and bisexual people.

Romer marked the first time in its history that the Court recognized lesbians and gay men as worthy and deserving of equal rights. The decision helped stem the tide of antigay initiatives that were spreading across the West in the late 1980s and early 1990s. The case was also important because it laid the groundwork for other important gay rights decisions. Most notably, when the Supreme Court reversed Bowers v. Hardwick and struck down all sodomy laws in Lawrence v. Texas (2003), it said that the “foundations of Bowers have sustained serious erosion from our recent decisions in Casey [a right to privacy case on abortion] and Romer.”

The amendment at issue in Romer v. Evans, known as Amendment 2, was placed on the November, 1992 ballot following a petition drive. The Amendment provided that:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The Amendment was promoted by a conservative Christian group called Colorado for Family Values that had formed to repeal all municipal and state laws and regulations prohibiting discrimination based on sexual orientation. There were two conflicting interpretations circulating in Colorado about these ordinances, state laws, and executive orders:

  • Colorado for Family Values and other religious conservatives described the regulations as granting “minority status protections to homosexuals, not granted to any other citizens.” That is, the regulations gave special privileges to gays and lesbians that were denied the heterosexual majority and the bisexual minority.
  • Gays, lesbians, and others held an opposing view: that these ordinances and laws protected everyone from any discrimination that they might suffer because of their sexual orientation. Specifically, they protect: (1) heterosexuals — the majority of adults who are sexually attracted to members of the opposite gender, (2) homosexuals — a minority of adults who are attracted to persons of the same gender, and (3) bisexuals — a smaller minority who are attracted to persons of both genders. Thus, according to this view, heterosexuals, homosexuals and bisexuals are all protected by antidiscrimination ordinances and laws to the same degree.

Since terms such as “homosexual”, “lesbian”, “gay”, and “bisexual” did not appear anywhere in the ordinances and laws, it seems that the interpretation by gays and others was correct: homosexuals and bisexuals were not given any special privileges by these ordinances and laws. The conservative Christians were factually incorrect. However, they conducted a masterful advertising campaign and Amendment 2 passed by a narrow margin (53.4% to 46.6%). According to the conservative Christian National Legal Foundation, this prevented their state legislature and all local “governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle.” This comment demonstrates two very common beliefs among religious conservatives:

  • That homosexuality is a chosen and changeable behavior; it is what homosexuals do. Religious liberals, gays, lesbians, bisexuals, mental health therapists, human sexuality researchers and others generally believe that homosexuality is actually an immutable, unchosen and unchangeable sexual orientation; it is what homosexuals are.
  • That groups should only be protected against discrimination based on immutable factors, such as sex, race, and skin color. They reject the concept that people should be protected from discrimination based on chosen factors. Since they regard homosexuality as a “chosen lifestyle,” they feel that homosexuals should not be a protected class. They overlook the fact that people choose the religion that they wish to follow. Nevertheless, religious conservatives demand freedom from religious discrimination.

The Amendment was immediately challenged in the state District Court for the City and County of Denver by a coalition of gays, lesbians, the American Civil Liberties Union, the National Association for the Advancement of Colored People, and representatives from the Colorado municipalities of Denver, Boulder, and Aspen, which had gay rights ordinances in effect. They sued Governor Roy Romer (ironically, who had been on record as opposing the Amendment), state Attorney General Gale Norton, and the State of Colorado. The plaintiffs argued that Amendment 2 violated their federal First Amendment right to free expression and their federal Fourteenth Amendment right to Equal Protection of the laws.

Plaintiffs sought and received a preliminary injunction from the trial court, thus preventing Amendment 2 from ever being implemented. The injunction was upheld by the Colorado Supreme Court. The trial court and the Colorado Supreme Court agreed that Amendment 2 infringed the fundamental right of gays and lesbians to participate in the political process. They found that Amendment 2 had violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The US Supreme Court agreed (6 to 3).

Justice Kennedy, writing for the majority, rejected the assertion that Amendment 2 simply deprived homosexuals of “special rights” which were not shared by the rest of the population. This was the argument used by Colorado for Family Values during their advertising campaign which lead up to the plebiscite. The Court ruled that, under Amendment 2:

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

The court also found:

. . . that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in “animus,” or hatred, against a specific group of people.

In unusually frank language, the Court found that:

. . . the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. . . . Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

In conclusion, Justice Kennedy commented:

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. . . . We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

In other words, the majority concluded that the creation of so‐called special rights for gays, which prevented discrimination against them, was really just another manifestation of equal rights, to which all persons were entitled. Amendment 2 was dead.

The Flag of Gay Pride

The dissenters, however, were blistering in denouncing the majority’s actions. Joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Justice Antonin Scalia accused the Court, in his typical hyperbole and hysteria, of “tak[ing] sides in the culture wars”. He characterized Amendment 2 as “rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” He criticized the Court’s majority for “imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.” [Scalia dropped his membership in the American Bar Association back in the 1980s when it took a position against gay discrimination.] Pointing to the “centuries-old” condemnation of homosexuality, he concluded that Colorado was “entitled to be hostile toward homosexual conduct” (his emphasis). Scalia even compared homosexuality to murder and cruelty to animals:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even “animus” toward such conduct.

In reaching his conclusion, Scalia adopted a number of classic stereotypes about the lesbian and gay community. He said “those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and…possess political power much greater than their numbers, both locally and statewide.” Scalia proffered that the goal of the lesbian and gay civil rights movement is to “devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.”

Interestingly, Chief Justice Rehnquist’s animosity toward gays and lesbians had never been a secret. For example, in Ratchford v. Gay Lib (1978), an opinion from Justice Rehnquist seemed to compare the right of homosexuals to assemble and advocate for legal reform to that of “those suffering from measles [who seek] a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles”.