A Cautious Man
October 24, 2003
Scalia vs. Scalia
In the news this morning, a story about Justice Antonin Scalia "mocking" the Supreme Court's majority decision in Lawrence vs. Texas, which struck down a Texas law criminalizing certain sexual activity if engaged in by homosexuals. The decision was based upon the recognized constitutional right to privacy. The Court found with respect to that law:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.
Although he dissented, Justice Thomas wrote concerning this law: "I write separately to note that the law before the Court today 'is ... uncommonly silly.' ... If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources."

Justice Scalia, of course, had a different view. Interestingly enough, he expresses that different view in different ways, depending on where he is. Among his colleagues, in his dissenting opinion, he took exception to extending the right of privacy in the case, noting:
Though there is discussion of "fundamental proposition[s]," (ante, at 4) and "fundamental decisions," (ibid.) nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right."

Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "deeply rooted in this Nation's history and tradition," the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test …
In contrast, in his speech before a conservative group:
The ruling, Scalia said, "held to be a constitutional right what had been a criminal offense at the time of the founding and for nearly 200 years thereafter."

Scalia adopted a mocking tone to read from the court's June ruling that struck down state antisodomy laws in Texas and elsewhere.
As mentioned above, the majority found that the Texas law violated a recognized constitutional right, namely, the right to privacy. Justice Scalia knows full well that is what the court did. Nevertheless, in front of a political group, he claimed that the Court had declared "a constitutional right to sodomy". That's a distortion of the basis of the court's ruling (as the Justice knows, since as quoted above he wrote "Not once does [the majority] describe homosexual sodomy as a 'fundamental right' "). The language chosen by Justice Scalia was clearly intended to "stir up the troops", using some tried-and-true (albeit inaccurate) "culture war" language. The Justice basically gave a political speech, and cloaked it in a veneer of legal argument.



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