Anti-Sodomy
Dissent Mirrors Slavery Reasoning, Scholars Say
Knight Ridder Newspapers,
July 18, 2003
http://www.kansas.com/mld/kansas/news/6335998.htm
By Stephen Henderson
WASHINGTON—In the wake of the
recent Supreme Court ruling that wiped out anti-sodomy laws, some legal
scholars say parts of Justice Antonin Scalia’s angry dissent echo the
reasoning used in the court’s 19th-century decision that justified slavery.
In both cases, Dred Scott in 1857 and Lawrence
v. Texas in 2003, justices faced crucial questions about
constitutional liberties: Are they set in stone? Or should the court take an
evolving view of the Constitution and extend rights to groups the founders
left out?
In Dred Scott, Chief Justice Roger B. Taney said
the Constitution and the nation’s legal history offered no suggestion that
blacks should have the rights other Americans enjoyed. The laws defined them
as property, not people, he said, so they couldn’t be citizens.
Similarly, Scalia’s dissent from June’s landmark
ruling that invalidated anti-sodomy laws argues that the Constitution and the
nation’s legal history contain no explicit protections of gay sex. So gays
have no fundamental right to engage in the private, intimate relations that
other Americans take for granted.
“In terms of constitutional interpretation, there are
uses of legal history which freeze a sense of morality in a point in time,”
said Lea Vandervelde, a University of Iowa law professor who is writing two
books about Dred Scott. “They don’t acknowledge that liberties
should be expanding with human progress.” Scalia and other judges like him
are proponents of that line of thinking, she said.
Scalia didn’t prevail in Lawrence, because only
two other justices agreed with him. But his dissent is drawing more than
passing attention because President Bush has described Scalia as his judicial
role model. Should the president get the chance to fill one or more high court
seats, he has said he would try to find judges who share Scalia’s view of
the Constitution.
The issues addressed in Dred Scott and Lawrence
are far from identical. And on some legal issues, the Dred Scott ruling
takes the opposite approach from Scalia’s dissent. But the similarities
between the two boil down to the justices’ views of constitutional
liberties. Confronted with efforts to extend freedoms to Americans who were
historically excluded, both relied on literal interpretations of the
Constitution to support legal inequities.
“Scalia’s dissent is very reminiscent of Dred
Scott, in that it embraces Taney’s cramped notion of history and the
law,” said Paul Finkelman, a University of Tulsa law professor whose book on
Dred Scott is one of the leading studies on the case and its
significance. “Scalia, like Taney, has a view that the only liberty
traditions are the ones we’ve had since the Constitution was written.
Really, that ignores the very language of the Constitution, which says you
can’t deny equal protection of the law to anyone.”
Justices don’t discuss cases or issues before the
court, preferring to let their written words stand on their own. Scalia did
not comment for this story.
Not all legal minds agree that Scalia’s dissent is like
Taney’s infamous opinion. Todd Gaziano, the director of the Heritage
Foundation Center for Legal & Judicial Studies, a conservative research
center for legal and constitutional issues, said Scalia’s objection was to
the way the court asserted a “novel” power for itself in the Lawrence
case.
“He’s saying we’ve never in our history had the
Supreme Court pass judgment on these issues,” Gaziano said. “They have
been the kind of liberties that states had a right to regulate, and we’ve
never had a court that just substitutes its own judgment for that of a
legislature or Congress on this kind of issue.”
Gaziano pointed out that Scalia has taken issue with
parts of Dred Scott, a complicated decision that addressed more than
black citizenship. The ruling also struck down the Missouri Compromise, an act
of Congress that limited slavery’s expansion. Taney thought that by doing
that, he could settle the issue of slavery with his ruling.
Scalia, in his dissent in Casey v. Planned Parenthood,
a 1992 abortion rights case, accused the majority of adopting a Taney-like
approach to the abortion debate. Rather than let the people decide how to deal
with abortion and permit “regional differences” on moral issues, the court
was imposing its own nationwide solution, he said. Scalia said the court, like
Taney, was prolonging and intensifying anguish over a moral issue by
overstepping its authority.
“I think that’s one reason the Dred Scott
analogy doesn’t work for his dissent in Lawrence,” Gaziano said.
“He sees that decision as being wrong, because it tried to strike some kind
of moral compromise rather than strictly adhering to the Constitution.”
Still, some of the similarities between Scalia’s and
Taney’s views on liberty are striking.
Scalia writes extensively about the history of morality
laws, and laws against gay sex in particular, and asserts they are “deeply
rooted” in the nation’s history and traditions. Taney discussed
Americans’ historical disdain for African-Americans and the long line of
laws that denied them rights. He said the founders believed that blacks “had
no rights which the white man was bound to respect; and that the negro might
justly and lawfully be reduced to slavery for his benefit.”
Scalia cites Americans’ reluctance to accept gays as
business partners, school teachers or “boarders in their homes” as the
basis for laws that deny them rights that others had. Gay sex, he argues, has
never been constitutionally protected. Taney said it was “too clear for
dispute” that blacks weren’t included in the Declaration of
Independence’s assertion that “all men are created equal.”
Kermit Roosevelt, a University of Pennsylvania law
professor, said that when the court refused to update notions of fundamental
liberty, the spirit of the Constitution’s promises goes unfulfilled.
Roosevelt said an 1873 case called Bradwell v. Illinois was a good
example.
“In this case, an Illinois lawyer sued so she could
become a member of the state bar, which didn’t accept women,” Roosevelt
said. The 14th Amendment, which provides everyone with equal protection under
the laws, had passed five years earlier. Still, the court ruled that the ban
on female lawyers was OK, because the founders provided a woman “no legal
existence” beyond her husband. The “paramount destiny and mission” of
women was to be wives and mothers, the court said.
“Today, this would be a no-brainer violation of the
14th Amendment,” Roosevelt said. “That’s the way in which the change in
societal attitudes should inform our interpretation of the Constitution.”
The University of Tulsa’s Finkelman said the 14th
Amendment in particular was written to be open-ended. John Bingham, the Ohio
congressman who was the amendment’s primary author, once said its charm was
its “indefiniteness,” Finkelman said. More than 130 years later, many
subsequent applications of the 14th Amendment seem obvious.
“The language of the amendment makes it inherently
flexible,” Finkelman said. “For example, at the time the 14th Amendment
was written it was quite common to conduct a criminal trial without a lawyer
representing the defendant. That was not considered a denial of due process of
law. But today everyone, even Scalia, would accept the notion that a trial
can’t be fair if the defendant doesn’t have an attorney.”
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