Scalia
Blasts Court on Sodomy Ruling
Associated Press, June 26,
2003
By Anne Gearan, Associated Press Writer
WASHINGTON—Justice Antonin Scalia,
during the Supreme Court’s final session of the term Thursday, accused his
colleagues of inviting gay marriage in a ruling he said “coos” over a
feel-good, gay rights agenda.
“The court has taken sides in the culture war,
departing from its role of assuring, as neutral observer, that the democratic
rules of engagement are observed,” Scalia said.
Scalia read from a dissenting opinion that, at 21 pages,
was longer than the court majority’s 18-page ruling striking down a Texas
ban on gay sex.
There were murmurs from some in the courtroom crowd as
Scalia railed for more than seven minutes against what he called a
hypocritical ruling that runs roughshod over democratically elected
legislatures.
“Many Americans do not want persons who openly engage
in homosexual conduct as partners in their business, as scoutmasters for their
children, as teachers in their children’s schools or as boarders in their
home,” Scalia wrote.
“They view this as protecting themselves and their
families from a lifestyle that they believe to be immoral and destructive.”
Scalia, writing for himself and the court’s two other
staunch conservatives, scoffed at the idea that Thursday’s ruling does not
address same-sex marriage.
“Do not believe it,” Scalia wrote.
“Today’s opinion 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.”
The court majority “coos, casting aside all pretense of
neutrality,” in describing the importance of sex in an intimate
relationship, Scalia said.
The sodomy ruling may also rankle Scalia for its
implications in the abortion debate.
Scalia and many other conservatives believe that the 1973
Roe v. Wade ruling allowing legalized abortion is a constitutional flight of
fancy, because it relies on a general right to privacy that they do not find
in the text of the Constitution.
Roe was decided by a different set of justices who sat on
a more liberal court. Five members of the current court founded Thursday’s
opinion on that same principle.
The court majority, led by moderate conservative Justice
Anthony M. Kennedy, said government has no interest in regulating what two
consenting adults do in their bedrooms.
Scalia scolded the majority for its willingness to
reverse a controversial 17-year-old ruling, Bowers v. Hardwick, that allowed
laws similar to Texas’. The court is ordinarily loath to reverse itself, and
rarely does so in such a short span of years.
Scalia noted that three justices who voted against him
Thursday also voted to uphold Roe v. Wade in a 1992 case. The majority in the
1992 case said, “to overrule under fire in the absence of the most
compelling reason ... would subvert the court’s legitimacy beyond any
serious question.”
Scalia strongly implied that is just what the majority
did in overruling Bowers.
Texas legislators were within their rights to pass a
sodomy ban, Scalia wrote for himself, Chief Justice William H. Rehnquist and
Justice Clarence Thomas.
Scalia said he has nothing against gays or anyone else
trying to change their lot for the better “through normal democratic
means.” Just as a state should be able to pass such a law, it could repeal
it, Scalia said.
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