Same-sex marriage symposium: Justice Scalia’s constitutional case for gay marriage

The following contribution to our same-sex marriage symposium comes from Dale Carpenter, Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota.  He is the author of Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans.

Constitutional law makes strange bedfellows. It can even unite supporters and opponents of same-sex marriage. Consider this: If Justice Scalia’s aggressive reading of Lawrence v. Texas (2003) is correct, could a Justice who refuses to overrule that decision reject a same-sex marriage claim?

To get at a possible answer, let’s recall Justice Scalia’s famous dissent in Lawrence. Scalia emphatically disagreed with Justice Kennedy’s majority opinion, which relied on the “liberty” protected by the Due Process Clause of the Fourteenth Amendment to strike down a Texas law criminalizing sodomy only if performed by persons of the same sex. Scalia argued that there was no history or tradition protecting a “right to homosexual sodomy” and that, absent infringement of such a fundamental right, the Texas law was valid simply as an expression of majoritarian morality. He similarly disagreed with Justice O’Connor’s concurrence, which concluded that Texas had violated the Equal Protection Clause of the Fourteenth Amendment by singling out gay sex alone for criminalization. Scalia countered that the state could justify banning same-sex conduct on the grounds that it regarded such acts as uniquely immoral.

Justice Scalia’s dissent went well beyond simply rejecting the majority’s conclusion, however. It offered a wide-ranging interpretation of Justice Kennedy’s opinion that at once sought to minimize its holding and to warn of its dangerous consequences. The minimization theme has been picked up by many lower courts, which have generally agreed that Lawrence did not recognize a fundamental right. Indeed, without too much exaggeration, one could say that Justice Scalia’s minimalist reading of Lawrence has been the controlling opinion so far. That’s a rare achievement for a dissent.

But what of Justice Scalia’s warning about the radical implications of Lawrence? Here, lower courts have been reluctant to adopt his reasoning. As the Prop 8 case comes to the Court for possible (and I think, likely) review, it’s worth recalling Scalia’s prescient warning about future litigation for gay marriage. He declared that Justice Kennedy’s opinion applied “an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.” Even Romer v. Evans (striking down an anti-gay state constitutional amendment), Cleburne v. Cleburne Living Center (striking down a decision to deny a permit for a home for the mentally disabled), and Department of Agriculture v. Moreno (striking down the denial of food stamps to “hippie communes”) were not so bold, according to Justice Scalia. Those decisions applied “conventional rational-basis analysis,” and found no conceivable legitimate state interest. But Lawrence “laid waste to the foundations” of rational-basis review. The decision, he continued, would produce a “massive disruption of the current social order” (memorably citing, among other consequences, the threatened demise of non-existent state laws against masturbation).

If indeed Lawrence did not implicitly recognize a fundamental right to same-sex intimacy, Scalia may be right that the decision has “far-reaching implications” beyond the decriminalization of adult consensual sex. It offers a basis for challenging other elements of “the current social order.” That’s because, if Lawrence wasn’t a fundamental-rights decision, then it denied states the power to distinguish homosexuality from heterosexuality simply because a majority believed in the moral superiority of heterosexual conduct. Lawrence, according to Justice Scalia’s reading, decided that heterosexuality could have no preferred constitutional status. And legislatures could not act on the moral belief that it does. Lawrence, in Scalia’s view, radically pushed the boundaries of American constitutional law.

The effect of Lawrence on laws forbidding same-sex marriage was already his primary concern in 2003, when there were no such marriages in the United States. A majority’s belief that same-sex relationships are immoral, he argued, “is the same justification that supports many other laws regulating sexual behavior” as well as “laws refusing to recognize homosexual marriage.” But Justice Scalia was not content with that insight.

At the end of his opinion, Scalia wrote the first draft of a brief for a constitutional right to gay marriage. Same-sex marriage, he suggested, is the “logical conclusion” of Lawrence. Only “the people” – not judges – are free to avoid such logical conclusions, he asserted. He mocked the Court’s pretension “that we need not fear judicial imposition of homosexual marriage” as a result of Lawrence.

The Court itself avoided stating any view on the formal recognition of gay relationships, an understandable silence given the precise case before it. But Scalia responded summarily to the Court’s disclaimer. “Do not believe it,” he warned. An affirmative case for same-sex marriage, he elaborated, could be built on passages in Justice Kennedy’s opinion offering constitutional protection to “‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education’” (emphasis by Justice Scalia), combined with the Court’s declaration that ‘”[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’”

Lawrencecould not be regarded as a restriction merely on the state’s power to criminalize private sexual conduct, he reasoned, quoting the Court’s words that such conduct “‘can be but one element in a personal bond that is more enduring.’” To those who thought Lawrence was just a sodomy case, not a gay-marriage case, he replied that Lawrence “‘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.” Justice Scalia didn’t believe the Court’s decision in Lawrence had much to do with principle or logic, but suppose another Justice did? That Justice, according to Scalia, would have to conclude that Lawrence opened the constitutional door to gay marriage.

Could a state close that door? Not according to Justice Scalia. “What justification could there possibly be,” he asked, “for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution’ [as understood in Lawrence]?”

How about the state’s interest in preserving “traditional” marriage, which is a close relative of the interest in proceeding slowly with the reform of a longstanding practice? That rationale wouldn’t survive the rejection of morality as a sufficient basis for law. As Justice Scalia noted in response to Justice O’Connor, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples” (emphasis in original). Lawrence ruled that out.

What of the state’s interest in fostering procreation, perhaps the most common justification in state and federal judicial opinions rejecting a right to same-sex marriage? Justice Scalia shot down that justification with an enviable economy of words. Such reasoning would “surely not” work to deny gay marriage after Lawrence because “the sterile and the elderly are allowed to marry.”

Perhaps there are other justifications for excluding same-sex couples from marriage, but they evidently did not occur to Justice Scalia as he swatted away the most common of them. It’s doubtful any justification could survive the unusually demanding rational-basis scrutiny that Scalia detected in Lawrence. He concluded that Lawrence “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.”

In a case squarely raising a constitutional right of marriage for same-sex couples, a Justice assessing Scalia’s logic has essentially three choices:

(1) Agree with Justice Scalia’s constitutional critique of Lawrence and conclude that the 2003 decision is not to be followed. States can re-criminalize the intimate private lives of gay men and lesbians, and theirs alone, for no better reason than they want it that way. This Justice would, in a proper case, vote to overrule Lawrence and would reject any right to same-sex marriage based on it;

(2) Agree with the result in Lawrence (or at least stand by it as precedent) but interpret the decision to have no real consequence for marriage laws. This Justice could reaffirm the result in Lawrence, but would have to reject the deep Scalian logic behind it, and only then rule against a due process right to marriage for gay couples; or

(3) Stand by Lawrence, and also (largely) agree with Justice Scalia’s interpretation of its consequences. This Justice would reaffirm Lawrence, and rule that its logic entails (as Justice Scalia thought) the unconstitutionality of laws excluding gay couples from marriage.

It remains difficult to see how a Justice could, on principled grounds, hold all three of the following views at once: (1) Lawrence should not be overruled; (2) Justice Scalia’s reading of it was basically correct; and (3) there is no constitutional right to gay marriage.

Justice Scalia himself would surely fall into category #1, as would Justice Thomas, who joined Scalia’s Lawrence dissent in addition to penning his own. They would not see themselves as bound by the decision.

The original and continuing hope of the due process challenge to Prop 8 was that at least five Justices would roughly fall into category #3 (or would rule for gay marriage on equal protection grounds). That remains possible if the Court’s four liberals are joined by one or more conservatives who often find Justice Scalia persuasive, but don’t want to repudiate a milestone opinion that ended a discredited chapter in the Court’s history.