For the Sake of Science

Lawrence v Texas was a case the Supreme Court had roughly a decade ago. The central question was whether or not states had the right to legislate private sexual acts between consenting adults. Specifically, Texas and other states had anti-sodomy laws meant to target gays. The court called bullshit and rightly pointed out the lack of constitutionality of such invasions of privacy. In the dissent to the law, political figure Scalia and Chester the Terrier avatar Thomas (and fashionista Rehnquist) gave some terrible arguments for their pre-decided votes. I want to focus on what Scalia said.

Part of what the chubby little shitbag did was appeal to stare decisis, something he applies only when convenient to his political ideology. But more importantly in his dissent is his exploration of the implications of the ruling:

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). 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.” Ante, at 17. Do not believe it.

In other words, Lawrence v Texas established adequate precedence for the constitutional legalization of same-sex marriage. At least it did in political figure Scalia’s view. (In reality, the 14th Amendment established it.) That means that once same-sex marriage makes it way to the Supreme Court in the coming years, Scalia is going to rule in favor of it. That is, if he really does care about stare decisis. But I wouldn’t bet on it.

I hope I’m wrong, but here’s my prediction: Scalia is going to rule against same-sex marriage in overt defiance of the principles he pretends he holds.

Filed under: Same-sex marriage | Tagged: Lawrence v Texas, Same-sex marriage, Scalia |