A great day for liberty

In his dissent from the Supreme Court's historic decision in the Texas sodomy case, angry Antonin Scalia was right about one thing: The next step is gay marriage.

Topics: Supreme Court,

June 26, 2003 marks a turning point in the long debate about the role of gays and lesbians in American society. We’re now a part of this country. Our relationships no longer labor under the burden of illegality.

The court did strike down a Colorado anti-gay measure in 1996, and the 6-3 decision in that case, Romer vs. Evans, was the first sign of where this conservative Supreme Court was heading. But the new consensus was always fragile and needed subsequent support. Now, with Thursday’s ruling on the Texas criminal sodomy law, the court has given it. As the apoplectic reactionaries on the far right have been pointing out, four of the six justices who just established that gay people have as much right to privacy as straight people were appointed by Republicans. This was a bipartisan decision that represents a huge cultural shift, a recognition, quite simply, that gay people are human beings who deserve dignity and equality under the law.

Check out Justice Kennedy’s moving description of the issue. The notion that it is merely about

“…the right to engage in certain sexual conduct demeans the claim put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse … When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

Wow. To tell the truth, I was surprised by the scope of the ruling. I had expected a far narrower decision based on Sandra Day O’Connor’s use of “equal protection.” But Kennedy seems to have won a critical majority around the notion that gays deserve the same privacy rights as straights. On the merits, he is surely right. Whether you agree or disagree with the notion that a right to privacy is in the Constitution, it’s been there for decades now and was inaugurated in order to protect straight people’s right to use contraception. Put another way, it was based on the notion that citizens have a right to non-procreative sexual intercourse in their own homes. And what is sodomy, if it isn’t non-procreative sexual intercourse? The remarkable thing about this ruling is therefore not that it occurred. It is that today’s Justices do not balk at simple logic in order to placate public prejudice.



Scalia’s withering dissent was intellectually weak, but its real impact may be to help the cause of full equality: that is, marriage rights. Scalia’s defense of the Texas law came down to two arguments: that an assertion of majority “morality” is justification enough for any law anywhere, regardless of its rationality; and that a law that covers only same-sex sodomy is not discriminatory toward homosexuals. Both ideas strike me as wrong. On the first count, surely the government does need to provide some kind of reasonable justification for a law expressing “morality” that doesn’t just rely on what people have always believed or always assumed. After all, anti-miscegenation laws had always existed and were supported by large majorities before they were struck down in 1967. And the central reason the Texas law was struck down was that its supporters couldn’t come up with an argument that justified the persecution of private sexual behavior, apart from the notion that stigmatizing gay sex was somehow good for families. How? They couldn’t say. Wouldn’t it be more supportive of families if it were extended to straights as well as gays? Again, no argument was given. Why? Because there is no credible argument.

After all, allowing sodomy for 97 percent of the population while barring it for 3 percent cannot possibly be defended as a law designed to prevent or deter sodomy. It was a law entirely constructed to stigmatize gay people. It had no other conceivable purpose. (It seems particularly fitting that it was used against an interracial gay couple in the case at hand.) And when “morality” is simply a rubric under which to persecute a minority, then we don’t really have the imposition of morality at all. We have the imposition of a prejudice. At least the Catholic Church makes no distinction between heterosexual sodomy and homosexual sodomy. In fact, I know of no religious or moral tradition that makes the distinction that Texas law made until today. Scalia is not therefore upholding any morality. He’s upholding bigotry.

As to his notion that the law doesn’t single out gays because two straight guys getting it on would be criminalized as well, that’s like saying that a law banning Jewish religious services is not anti-Jewish since gentiles are banned from conducting such services, too. It’s the kind of sophistry you need to deny the obvious intent of the Texas law.

But Scalia is right about one thing: Once you acknowledge the dignity of gays as a social class, once you have conceded that their private sexual and emotional lives cannot be reduced to a single sexual act, once you have made the law equal with respect to the private sex lives of heteros and homos, the logic of same-sex marriage becomes hard to resist.

To quote Scalia: “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.”

Of course, that precise moral disapproval of same-sex couples — not sex acts, mind you, but couples — is precisely the “morality” that Scalia purports to uphold. It isn’t a reasonable morality, since it allows the “sin” of sodomy for the vast majority of people but denies it only to a small, stigmatized minority. It’s a system of social stigmatization that has its own circular, prejudiced rationale. But getting rid of that incoherent prejudice does make marriage the obvious next step:

“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. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense at neutrality) ‘when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring’; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected under the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘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 the Court.”

Precisely. “Equality under the law” means something. And now, it inescapably means the right to marry — for all citizens and not just those with power. What happened June 26 was not just the closing of one awful chapter in social oppression. It contained the logic that will open a new era of dignity and equality for all citizens, regardless of sexual orientation. Celebrate. Rejoice. Remember.

And then re-energize the fight for marriage.

Salon columnist Andrew Sullivan's commentary appears daily on his own andrewsullivan.com Web site.

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