DUNCAN OSBORNE | Gay City News | January 5, 2013
In his 2003 dissent in Lawrence v. Texas, the US Supreme Court case that struck down sodomy statutes in the 13 states that still had such laws, Antonin Scalia, a conservative justice, excoriated the majority for undoing the justification for many laws.
“Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation,” Scalia wrote, citing the decision in Bowers v. Hardwick, a 1986 US Supreme Court decision that upheld the sodomy laws then in force in 24 states. “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.”
This spring, the court will hear a challenge to the section of the Defense of Marriage Act (DOMA) that bars federal recognition of same-sex marriages and will also review a 2010 federal court ruling that struck down Proposition 8, a 2008 ballot initiative that eliminated the right of gay and lesbian couples to wed in California. An appeals court later upheld the 2010 ruling.
While few expect Scalia to rule for gay marriage in either case, how does a justice who admits that the central justification for disfavoring homosexuality is gone argue for continuing to disfavor homosexuals?