Scalia get’s it right… mostly

Antonin Scalia is a Reagan appointee to the Supreme Court. He’s typically seen as a strict constitutionalist, which is true for the most part. And in recent statements I agree when Scalia says that many questions of Constitution conflicts are easy to answer – that is if you know and understand the Constitution. Here is the statement in question:

The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.

Scalia elaborates on the death penalty mildly to say that the Drafters of the Constitution and those who wrote the Bill of Rights would not have imagined the death penalty being forbidden by the Eighth Amendment, the one that prohibits cruel and unusual punishments. I’ve elaborated on this elsewhere.

The only part of Scalia’s statement with which I take issue is the last. And the reason I take issue with that statement is its appeal to a former status quo. Thankfully the Court didn’t appeal to "conventional wisdom" when it overturned sodomy laws in the case Lawrence v. Texas, 539 US 558 (2003). In fact it even nullified the ability to claim such by noting, "It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so." The majority decision in the case also does a very good job of destroying any claim that homosexuality (as opposed to "sodomy") has been illegal for a significant time or that such illegality, as the Court in Bowers v. Hardwick initially claimed, has "ancient roots". The Court noted of the current laws:

The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

But then one must ask why he brought up "homosexual sodomy" to begin with. The Supreme Court has settled the question in very well-defined terms. Private consensual sexual acts, whether homosexual or heterosexual, cannot be prosecuted, plain and simple.

Further, sex and marriage are two completely different issues, addressed completely differently in law. Don’t believe me? The sodomy laws of many States extended to heterosexual encounters that include what was typically called "deviant sexual behavior" – i.e. anything other than vaginal sexual intercourse. Who would think that a guy going down on a woman, or vice versa, free of charge (so as to rule out prostitution) could land both of them in jail? And in some States that was also a felony! Imagine a married couple being prosecuted on felony charges for having sex beyond "conventional" boundaries! Just try to wrap your mind around that idea for a moment.

Thankfully after the Court decision in Lawrence many of these laws are inapplicable except in cases where there is not any consent.

Beyond this, while Scalia is observing the Tenth Amendment in noting the former State-level criminal statutes, he is ignoring the Ninth and Fourteenth Amendments. The Ninth Amendment gives the People the power to say to the government, "You have gone too far", while the Fourteenth Amendment states *explicitly* that no State may deny liberties to those within its jurisdiction without "due process of law". This means that, unless it can be demonstrated that an individual’s actions have somehow violated the rights of another person, the government should not act. This includes private, consensual sexual acts even of a homosexual nature.

The Equal Protection Clause also applies here. Where the laws provide some kind of protection to a person, that protection cannot be discriminatory. All persons must have equal ability to seek the protection of the law. For example if rape against women is felonious under the law, so must rape against men. If mugging a white guy is a crime, so must also be mugging a black guy. Sounds easy, right?

Now does civil marriage unto itself provide certain protections under the law? Unto itself, no. But the law makes available certain legal protections to those who are married that go into effect the moment the marriage is legally officiated. As there are legal protections applied to civil marriage, it is a violation of the Equal Protection Clause to deny access to those protections to all but only those whom you deem "appropriate". Everyone must have access to those protections.

If you don’t like that, then the only consolation is to remove the protections afforded to married couples from the law. Amending the Constitution of the United States to set a definition of marriage is absurd. If anything needs to be abolished, it isn’t gay marriage, but marriage licensing. Why should a couple need to implicitly get the permission of the government to get married?