Russell and Duenes

Justice Scalia’s Prophetic Words in Lawrence v. Texas

with one comment

In light of the recent ruling on Prop 8 by Chief U.S. District Judge Vaughn Walker, we should consider the legal cover that was given him by the Supreme Court’s 2003 ruling in Lawrence v. Texas. In Lawrence the Supreme Court struck down a Texas statute banning sodomy, citing a “right to privacy” and Constitutionally protected liberty for homosexuals to engage privately in such behavior. The point at issue is not whether I think sodomy laws are good laws. The issue is clearly whether the Constitution guarantees the American people the right – through the legislative process – to criminally prohibit behaviors they find to be morally wrong. Clearly the Constitution does allow such a process, which is why the reasoning in Lawrence was wrong, and why it has led inevitably to the same bogus reasoning in Judge Walker’s ruling on Prop 8. Justice Scalia, in his dissent in Lawrence, saw such a thing coming, and properly and powerfully exposed the Court’s faulty jurisprudence.

One of the benefits of leaving regulation of this matter [i.e., sodomy] 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). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. 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. 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, 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,” 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.



Written by Michael Duenes

September 26, 2010 at 4:17 pm

Posted in Duenes, Supreme Court

One Response

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  1. Anal sodomy? Surprise! Just google The First Scandal Adam and Eve.

    Robert Hagedorn

    September 27, 2010 at 2:44 pm

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