On Lawrence v Texas and Justice Scalia

Recently, I wrote disparagingly on the behaviour of a law student in disrupting a Q&A session with Justice Scalia. At the time, I had not read the SCOTUS ruling on this matter, it can be found here. I think Justice Thomas’ dissent said it best, in agreeing with Justice Scalia’s take on the matter but including point that the law before the Court today is “is … uncommonly silly”. That is to say, it should be repealed, but is Constitutional. It seems clear that Law and a societies morals are entwined in an intimate embrace and that a State should be allowed to pen laws that address the moral behavior of its citizenry, which the majority ruling attacks. The main thrust of the objectionable questions raised by Mr Brandt actually give rise to doubt whether he even bothered to read the ruling. J Scalia writes:

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.

J Scalia was not passing judgement on homosexual behavior, but on the rights of people (legislators) to pass laws respecting the conduct of its citizens. I heartily agree with J. Scalia (and I think most people should agree) that it is better for the legislators where possible to pen our laws, not our judiciary for they are more accountable to the electorate. The gay rights aspect of this matter muddies the waters and just acts to raise passions and to obfuscate people like Mr Brandt.

16 Responses to On Lawrence v Texas and Justice Scalia

  1. Mr. Moderate

    I’m not surprised you agree with Scalia. Why you feel it is right *and* constitutional to regulate private consentual adult behavior and still say you are for small government is beyond me. The fact that it is gays being demonized (by the way did you catch the comments from the Republican legislatures yesterday in regards to the gay adoption bill that went through the Texas legislature) it is easy for Scalia, Thomas and most of the right wing to dismiss this as a simple act of mental masturbation (masturbation being yet another act mentioned in Scalias dissent that he felt it was appropriate for state legislatures to turn into a crime). In the states where oral sex of any kind is also covered by the sodomy statute, I wonder what your response would be to a married couple getting arrested by the police for engaging in such private consentual adult activity?

    The court formerly addressed contrived moral issues passed by the state legislatures that inequitably treated U.S. citizens. Take once again the ban on interacial marriages that existed throughout the south (and in Alabama until the late 1990′s). The issue of race mixing was considered a very moral issue, and thus the legislatures felt it was appropriate to ban such practices. The courts however ruled with the law rather than with their prejudices. The same thing happened with Lawerence v. Texas. To argue otherwise is to argue for the big brother statism, in this case with a little theocracy to boot.

  2. Mr Moderate,

    I said I agreed with Thomas, that it was wrong but Constitutional.

  3. Mr Moderate,

    On further reflection in fact, I would argue that in principle you should support J. Scalia’s dissent. For in fact, he argues for smaller federal government ceding legislative powers to the states. Now, in the specific case of this law, we in fact both agree with J. Thomas that the Law is wrong, but that decision is not the job of the SCOTUS, whose purpose is to decide questions of Constitutionality. Bad laws may in fact be Constitutional. The majority I think was in the wrong, who decided to rule in favor of Lawrence partially on the basis of this being a bad law. That is not the purview of that Court, but of Legislature and lower courts.

    J. Scalia also commented that the idea that police would be getting court orders for the purpose of police action towards catching people in the act of private (proscribed or not) sexual behavior was a far stretch and not the purpose of these laws. In fact they were intended to criminalize such behavior when consent was not (or could not in the case of minors) be given.

    Finally, while the dissent argued for less federal powers, the affirmative argued for assuming these powers to the federal government, i.e., that a state has less right to set laws respeting morality within its borders and that those moral codes are under federal purview. Which means the 500+ knuckleheads in Washington just got a little more power. Given your opinion of the majority in the two Houses and the POTUS, one might think you’d be rooting for Scalia and Thomas as well.

  4. Mr. Moderate

    For in fact, he argues for smaller federal government ceding legislative powers to the states.

    Tyranny at the state level versus the federal level is just a game of symantics. The court ruling addressed those issues when discussing the constitutionality of the law.

    Which means the 500+ knuckleheads in Washington just got a little more power. Given your opinion of the majority in the two Houses and the POTUS, one might think you’d be rooting for Scalia and Thomas as well.

    It is unconstitutional for either the federal or state legislature to making these sorts of laws. I have argued in the past that more power should be ceded to the states than is presently. I have never advocated that that power should be allowed to abridge federally protected constitutional rights however. Although states often times ran roughshod over the constitutional rights of their citizens, they did not have the right to do so. They just got away with it.

  5. Mr. Moderate

    Thomas in his dissent at least had the temerity to point out the stupidity of this kind of legislation. Scalia however tried to justify it. I guess you are saying you really support the Thomas, not Scalia, dissent since you too think that these sorts of laws are “silly.”

  6. Mr Moderate,

    J Scalia did not “try to justify” the law. He pointed out that Laws like this have existed since the inception of our government and that this overturns a ruling only 17 years old.

    The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”

    and that “This effectively decrees the end of all morals legislation.” This is not a defense of the homosexual sodomy statute but of the right of a state to issue moral code based laws. I am not sufficiently libertarian to advocate legalization of child pornography, child prostitution, and so on. These are laws based on moral codes, which J Scalia points out are not overthrown by Lawrence. You support that!? Finally, I don’t exactly understand how I could support Thomas and not Scalia, in that Thomas states he joins Scalia’s dissent, but would add that the statute is “uncommonly silly”.

  7. Mr. Moderate

    I am not sufficiently libertarian to advocate legalization of child pornography, child prostitution, and so on. These are laws based on moral codes, which J Scalia points out are not overthrown by Lawrence. You support that!?

    Wow, I didn’t expect you to make a casual link between sodomy laws and child pornography and prostitution laws. The operative word in each of your “moral laws” is child. Children are not able to give consent to partake in those activities anymore than they can consent to getting a credit card or a car title. It is illegal because at most only one party can consent to the activity. The same is true for rape, child or adult, where it is a question of the second person not consenting to the activity. I agree the laws should stay on the books because their needs to be penalties for engaging in such activities with those who do not consent to them.

    Finally, I don’t exactly understand how I could support Thomas and not Scalia, in that Thomas states he joins Scalia’s dissent, but would add that the statute is “uncommonly silly”.

    Thomas left the discussion as it was matter for the states. Scalia goes into long winded descriptions of the “homosexual agenda” and rationalizing that laws solely banning same-sex sodomy are equal protection because “Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex.” Of course he ends with the usual right wing condescention of, “…I have nothing against homosexuals…” Reminds me of those southerners from the mid-20th century who would state silliness such as, “I’ve never had a problem with blacks, they’ve always made fine servants for my family.” His intentional obtuseness on the equal protection clause and the issue of private versus public consentual adult sex makes him look as idiotic as the laws that are being discussed.

    Compare that with Thomas who stated, “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.” See, no back handed denigration of gay people as in the Scalia decision. Not one element of rationalization for this sort of idiotic law which the religious right is fighting tooth and nail to keep on the books. Scalia’s biggest issue with the law seemed to come from coming up with a method for acquiring evidence to prosecute people for their personal behavior.

    Perhaps we as a nation do need a few new constitutional amendments to shut up the religious right once and for all. One to specify our right to privacy in consentual adult sexual relationships. Another for the right to an abortion. Another for the role of the federal government to administer the social security and Medicare system. One more for the establishment of national health insurance under the federal government.

  8. Mr Moderate,

    Scalia’s “long winded description … rationalizing laws against same sex intercourse” where not as you say a rant against homosexuality, but he is just overthrowing the point (against the concurring opinion) that there was little historical basis for Bower. Scalia cites the historical record to rebuff this claim made by the majority. His opinion on these statutes is not mentioned nor salient. His “issue” with enforcement was not to point out that it should be enforced actively, but that it was never intended to be (which I would gather you would support). The other point of his historical digression is that (a) the majority opinion does not grant a “right to homosexual sex” and (b) the statute in question does not restrict any liberties that have not been restricted since the inception of our country, thus a new right like Roe v Wade would have to be established to support this opinion and that the majority did not do so, and thus they are in error.

    As for my mentioning child pornography and prostitution, that was my laziness in not looking up and quoting the text of the dissent. The quote (from Scalia) is as followw:

    States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography.

    These are all very likely overthrown by the Lawrence decision. Is that what you want?

  9. Mr. Moderate

    Scalia’s point is that as long as there was systemic discrimination in the law then it is justified? Please!

    These are all very likely overthrown by the Lawrence decision. Is that what you want?

    Laws againts prostitution, adultery (show me an enforced criminal law against adultery, I dare you) and “obscenity” should be stricken. There is no need for them in society. All of those things are consensual private adult activity that the government should butt out of. The only one that even comes close to requiring government intervention is prostitution, and that can come in the form of regulation and licensing in order to provide some saftey and security in the matter. Laws against child pornography, beastiality, pedophilia, and rape should remain on the books because it is impossible for both parties to consent to the activities. Scalia, the religious right and you invoking the slippery slope argument that giving gay couples the right to have sex in their own homes will lead to widespread legalization of pedophilia is outrageous. You repeatedly make references to it, and support Scalia for making references to it, yet this whole dissent is supposedly not some rant against homosexuality. I beg to differ.

  10. Mr. Moderate

    His opinion on these statutes is not mentioned nor salient.

    His opinion on the so-called “deviate sexual activity” of gay people permeates his opinion.

    His “issue” with enforcement was not to point out that it should be enforced actively, but that it was never intended to be (which I would gather you would support).

    I’m for not having the laws on the books at all. Arguing that the laws are acceptable as long as they aren’t actively enforced, I guess they will be inactively enforced by the friendly neighborhood morality police, is ludicrous. I mean, if the rationale is that these laws are required to uphold the moral foundations of the society, you would think that they would be considered important enough by the people who put them on the books for them to be actively enforced. Once again, if it was a husband and wife who were arrested for engaging in oral sex during the timing of the police raid, the law would have been struck from the books without much dissent,except possibly from the same people who didn’t want to change Alabama’s interracial marriage laws in the 1990′s because it ostensibly lead to gay marriage. It is because we are discussing the private, consensual adult behavior of the religious right’s prime target group that we are still having to address these issues.

  11. Mr Moderate,

    We’re (I think) not arguing that laws governing consensual sexual behavior should be struck from the books. We and J. Thomas and perhaps the entire SCOTUS (including Scalia) all think so. You however seem to think they should be un-Constitutional, and I do not. That you think laws against obscenity (and that all laws like that) should be stricken I hazard just demonstrates that you have not struggled with raising young children in our society.

    Just checking, actually the term deviate occurs 5 times in the majority opinion and once in Scalia’s dissent. I think you bear your preconceptions into the text.

  12. Mr. Moderate

    That you think laws against obscenity (and that all laws like that) should be stricken I hazard just demonstrates that you have not struggled with raising young children in our society.

    Somehow Europe, Canada and Japan have survived without the puritanical paranoia about obscenity that exists in the United States. I don’t think that children should have widespread access to pornography, R-rated movies or other such material. That doesn’t mean that adults shouldn’t be able to access that if they so choose.

  13. Mr. Moderate

    On your 5:1 ratio of the use of the word “deviate” did you bother to actually read the locations where it existed. In each and every case both Kennedy and O’Connor were quoting the statute or similar statutes. Thus they would say something like (O’Connor):

    When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes…

    Compare that to the Scalia quote:

    Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex.

    No quotes. It is in the context of the Texas statute. Both of the other justices managed to put the language in quotes to ensure that it wasn’t read as a matter of fact statement that gay couples having sex was deviate. I’m sure it is just a coincidence that Scalia put the language in sans quotes. Let us also remember this was in the section where he is obtusely addressing the notion that the statute provided equal protection because both gay and straight people can be prosecuted for having private consensual homosexual sex. Nevermind the reality that such a law forbids two gay people in a long term relationship to express their love through physical intimacy. The fact that he fails to grasp that leads me to believe, perhaps wrongly, that he intentionally left the quotation marks of the language described in the statute.

  14. I for one have never found anything “silly” about a law that directly attacks my liberties, as well as those of straight Americans.

    Would we call it “silly” if a law prohibited women from working outside the home? No. We would call it barbaric, and so it is with sodomy laws.

  15. Jason,

    I have said I think it is a bad law. But I think you are being careless in thinking it matters not how it is overthrown. J Scalia says

    Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts — or, for that matter, display any moral disapprobation of them—than I would forbid it to do so.

    I am against the courts subsuming to themselves (and to the federal government) more powers. If some states pen poor laws it is far easier to find a new state in which to reside, than if the federal government pens those poor laws, for then whence will you go?

  16. Jason,

    It also (later) occurred to me, that you should perhaps learn from the wisdom of J. Thomas choice of words. Which term might you use to describe the law in question that might more outrage those who support it more than “silly”. How do you think they will react to outrage? Smugly satisfied? Derision and scorn I think they will find less tolerable.