The Sexual Orientation Cases

Bowers v. Hardwick

478 U.S. 186 (1986).

Bowers was a profoundly contentious decision both within the Court and outside it.

For a variety of perspectives see David A.J. Richards, The Sodomy Cases: Bowers v. Hardwick and Lawrence v. Texas (2009): Kendall Thomas, The Eclipse of Reason, Va,. L. Rev. 1805 (1993): Randi Maurer, Bowers v. Hardwick: A Giant Step Backwards for Privacy Rights, Loy. L.A. L. Rev. 1013 (1987): Marc S. Spindelman, Reorienting Bowers v. Hardwick, 79 N.C. L. Rev. 359 (2001). For a kaleidoscopic set of views on one convenient location see the collection of essays in 79 Va L.R. 1419 (1993).

The easy assumption is that the ratio of Bowers is that a State was entitled to attach even quite severe criminal sanctions to adults who consensually engaged in private in homosexual sexual activities. However, the Georgia statute at issue in Bowers criminalized various sexual practices irrespective of the sexual orientation of the participants. The clause in issue (Georgia Code Ann. §16-6-2 (1984) provided simply that: “(a) A person commits the offence of sodomy when he [or she] performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another”. It was therefore entirely possible for heterosexuals to commit ‘sodomy’ with each other under Georgia law whether through anal (whether penetrative or not) or oral sex. While Mr. Hardwick was gay, and was obviously concerned to establish that Georgia could not prevent him having sex with other men, his suit was argued on the basis that consensual private sexual activity between adults was a privacy interest that States could restrict only through laws that could withstand strict scrutiny analysis. On that basis, Mr. Hardwick had been successful before the Court of Appeals for the Seventh Circuit.

760 F 2d. 1202 (7th Cir. 1985).

Justice White’s majority opinion however presented the question in much narrower terms:

The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy….

Justice White presumably meant this to read ‘to engage with other homosexuals in sodomy as defined in Georgia law.’ Whether Georgia could proscribe ‘sodomy’ by a bisexual man with a woman (whatever her sexual orientation) was a question apparently beyond the majority’s imagination.

[R]espondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.

478 U.S. 186, 191 (1986).

Having defined the question in that way, Justice White was able to conclude that none of the by then long and eclectic line of privacy-liberty case law

On inter alia, schooling and educ. Meyer v. Nebraska, 262 U.S. 390 (1923). Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925): sterilization, Skinner v. Oklahoma, 316 U.S. 535 (1942): and contraception and abortion Griswold v. Connecticut 381 U.S. 479 (1965). Eisenstadt v. Baird, 405 U.S. 438 (1972). Roe v. Wade, 410 U.S. 113 (1973).

The majority judgment is very cursory. It certainly makes clear that there is no need for the Court to subject Georgia law to strict scrutiny, and rather suggests that even if the law were subject to rational basis review no argument could be made against its constitutionality:

478 U.S. 186, 196 (1986).

The majority in effect upheld a State law other than the one before it. But in doing so the majority confirmed that it was constitutionally quite acceptable for a political majority in a State to attach severe sanctions to homosexual behavior, for no reason other than that the majority found homosexuality morally distasteful, so long as that majority sentiment was shared and had been given legal effect by many other State majorities.

For a fascinating ‘inside’ view of the dynamics of the decision-making process in Bowers, and especially the role of Justice Powell, see Murdoch & Price, supra note 5, at chs. 12-13.

The dissenting view rested on the premise that the Georgia law interfered not with a right to homosexual sodomy, but with: “the fundamental interest all individuals have in controlling the nature of their intimate associations with others.”

Id. at 206.

While the majority judgment affirmed the constitutionality of legislation criminalizing gay sexual activity, in the years immediately following Bowers the legislative trend was firmly towards more widespread decriminalization. Almost twenty years were to pass before Bowers was squarely revisited by the Court. In the interim, three further sexual orientation cases, all involving civil rather than criminal law issues, received the Court’s attention.

Justice Scalia was a silent adherent to a unanimous court opinion in Hurley v. Irish-Am. Gay Lesbian and Bisexual Group of Boston, Inc.

515 U.S. 557 (1995). The court was Rehnquist, C.J. (Nixon/Reagan 1972/1986), Stevens (Ford 1975), O’Connor (Reagan 1981), Scalia (Reagan 1986), Kennedy (Reagan 1988) Souter (Bush 1990), Thomas (Bush 1991), Ginsburg (Clinton 1993), and Breyer (Clinton 1994), JJ. On the positions of the individual Justices prior to the judgment being written see Murdoch & Price, supra note 5, at 428-34.

The Veterans Council had refused to allow GLIB to march in the parade. GLIB then sued the Veterans Council under the Massachusetts public accommodations law, which prohibited: “[A]ny distinction, discrimination or restriction on account of [specified criteria] relative to the admission of any person to or treatment in any place of public accommodation, resort or amusement”.

Mass. Gen. Laws s.272.98 (1992); https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section98.

Rather curiously, on the Veteran Council’s appeal to the Supreme Court, GLIB did not argue the case on the basis that the Veterans Council’s activities amounted to state action (through the license granted by the city) under the Fourteenth Amendment,

The point had been raised and lost in the trial court. The argument would have been a strong one in the light of such authorities as Reitman v. Mulkey, 387 U.S. 369 (1967); Jones v. Mayer, 392 U.S. 409 (1968); Moose Lodge 107 v. Irvis, 407 U.S. 163 (1972).

The Supreme Court also proceeded on the basis that – as a matter of fact – the Veterans Council did not and would not exclude any individual from the parade because of her sexual orientation;

5 1 5 U.S. 557, 572 (1995).

Whether (some members of) the Court designedly obscured or displaced the sexual orientation discrimination dimension of Hurley is a matter for speculation. But the case was decided in a political context within which an increasing number of States (or of municipal governments within them) were beginning to proscribe and/or restrict various manifestations of such discrimination.

See Murdoch & Price, supra note 5, at ch. 16.

The Court, although its composition was unchanged, could not maintain a united front just a year after Hurley when delivering judgment in Romer v. Evans.

517 U.S. 620 (1996).

In a nice illustration of the often fragmented nature of the governmental system in the United States, the titular ‘defendant’ in the case was Roy Romer, the then (Democrat) Governor of Colorado. Romer found himself defending the constitutionality of a state constitutional provision which he had opposed and campaigned against prior to its adoption. The provision, known as ‘Amendment 2’ was adopted in 1992.

Colorado uses the initiative device for constitutional reform (ConstitutionArt V s. 1; http://tornado.state.co.us/gov_dir/leg_dir/olls/constitution.htm#ARTICLE_V_Section_1;. A simple majority of votes cast in favor of the proposed amendment is all that is required. In the amendment 2 ballot, the majority in favor was 813,000 to 710,000. See Stephen Zamansky, Colorado’s Amendment 2 and Homosexuals ‘Right to Equal Protection of the Law, 35 Boston Col. L. Rev. 221 (1993); Murdoch & Price, supra note 5, at ch. 16.

Amendment 2 was subject to injunctive litigation in the state courts before it came into effect. Richard Evans, a gay man, was the lead plaintiff in the action, although he was joined by a variety of other individuals, pressure groups and local municipalities.

Denver, Boulder and Aspen (all liberal enclaves within the State) had already enacted antisexual orientation discrimination ordinances. Amendment 2 was in part a backlash from the conservative heartlands of Colorado against such metropolitan cultural initiatives. See Jean Hardisty, Constructing Homophobia: Colorado’s Right Wing Attack on Homosexuals, Public Eye (1993) (archived at http://www.publiceye.org/magazine/v07n1/conshomo.html.

The case was taken on appeal to the United States Supreme Court, being argued in October 1995 and decided in May 1996. The Colorado Supreme Court’s judgment was upheld by a 6 (Kennedy, Stevens. O’Connor, Souter, Ginsburg and Breyer, J.J.) to 3 (Rehnquist, C.J., Scalia and Thomas, J.J.) majority. The majority upheld the Colorado Supreme Court’s decision that Amendment 2’s requirement that non-heterosexuals had to seek through constitutional amendment what all other groups could achieve through ordinary legislative or governmental processes was properly seen as infringing upon a ‘fundamental right’. The conclusion seemed however to rest at least implicitly on a suggestion that sexual orientation should be recognized as a suspect category – and so a trigger for strict scrutiny – for equal protection purposes. Formally however, the majority view on the equal protection question was that Amendment 2 could not even pass rational basis scrutiny because it amounted in essence to a majoritarian attempt to stigmatize and disfavor a specific group. The majority invoked the decision in Dep’t. of Agriculture v. Moreno

413 U.S. 528, 534 (1973).

At its core, Kennedy’s opinion appeared to assert that a State had no constitutional capacity to allow its citizens to manifest in law their ill-will or bigotry toward a clearly defined sub-group, irrespective of how many of the State’s citizens endorsed that particular point of view.

Justice Scalia’s opinion for the dissenters might be thought at its strongest when it takes the majority to task for its failure to engage at all with Bowers. The gist of the critique would seem to be that Bowers manifestly permits State majorities to ‘harm’ gay people by criminalizing their consensual, private, sexual conduct, and so the majority conclusion in Romer could only be correct if Bowers was wrongly decided. While this would be an obviously forceful doctrinal point if that is what the issue actually was before the Bowers Court, the critique is of course premised on a lie (it is hard to believe it is a misunderstanding), since the Georgia law under assessment in Bowers applied (at least on its face) as readily to heterosexual as to homosexual sexual practices. One might have thought a judge as intellectually rigorous as Scalia, J. was supposed to be would have noted this flaw in the Bowers majority opinion, but it seemed to pass him by. This endorsement of an essentially mendacious majority judgment is however, perhaps the intellectual high point of his dissent in Romer v. Evans.

Initially one might think Scalia is on firmer ground when he makes the observation that several States have rendered polygamy unlawful except through the mechanism of constitutional amendment.

Id. at 649.

That Scalia can equate a person’s consensual sexual activities with committing murder is better described as unhinged than unsound. The comparison with animal cruelty is of similar quality, if of lesser degree, and the inapposite nature of the homosexuality/polygamy analogy has already been noted.

A subsequent passage is striking more for its constitutional illiteracy than its logical shortcomings. In criticizing the majority view that subjecting gay people to an atypically onerous lawmaking process is constitutionally objectionable, Scalia offers the following proposition:

What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists.

Id. at 648.

This is a remarkably silly observation. It ignores of course the rather basic point that while the Colorado Constitution is subject to the limits of the national Constitution, the national Constitution is a legal construct of unlimited competence. No provision of the Constitution can be argued to be unconstitutional.

While Scalia castigates the majority for assuming that the people who voted for Amendment 2 were motivated by animus towards homosexuality, he does not trouble himself to offer any evidenced explanation of just what that motivation was. Nor does Scalia bother to disguise his own clear ‘animus’ towards homosexuality, which rather suggests that if he had even addressed the point that his judicial role would require him to cast aside his own cultural opinions while forming his judgment he had decided there was no need to do so. The comparison of homosexuality to murder was remarked upon above. In a similarly derogatory vein, when touching upon the issue of welfare support for widowed spouses, Scalia equates the “‘life partner”’ (Scalia J.’s “…”) of a gay person with a heterosexual person’s ‘long time roommate’. The “…” themselves betoken an obvious distaste for same-sex coupledom, while the suggestion that such a couple are in an analogous position to ‘room-mates’ is a manifest belittling of gay relationships. The use of “….” as a means to connote disdain for the litigants also appears whenever Scalia mentions the notion of sexual “orientation”, something which he seems to equate with what he later refers to – again in “…” - as an “alternative life style”.

Repeatedly, but not exclusively, at 517 U.S. 620, 643 (1996). The alternative life style label is at 645.

Matters of style shade back as well into questions of substance. Scalia devotes much of his judgment to asserting that the only effect of Amendment 2 is to make it harder for gay people to gain ‘preferential treatment’.

Especially at id. 636-37.

Scalia’s major concern however seems to be that the Court is faced with a conspiracy between the unholy alliance of an unrepresentative lawyer elite which is improperly sympathetic to sexual orientation equality, and a disproportionately powerful gay mafia:

He is appalled for example that most law schools do not permit sexual orientation discrimination in their hiring policy, even though – once again grasping for the absurd – it is apparently acceptable for them not to hire someone because inter alia he [sic] ‘eats snails’; id. at 652-53.

All in all, the dissent is not very impressive stuff.

Scalia merely assented to the majority judgment in Boy Scouts of America v. Dale

530 U.S. 640 (2000). On Mr. Dale’s view of the case – and of the Boy Scouts – see especially Murdoch & Price, supra note 5, at 496-509.

Mr. Dale had by all accounts been an extremely successful scout. His difficulties with the organization began when, having moved on to university he came out not just to his family and friends but to the wider public by involving himself in various gay-rights lobbying activities. This evidently came to the attention of the Boy Scouts of America, which promptly expelled him from the organization. The New Jersey courts, undeterred it seems by Hurley, found in Mr. Dale’s favor.

The Supreme Court, unchanged in composition since Romer v. Evans changed its alignment in Dale, with Justices O’Connor and Kennedy joining the Romer dissenters (Chief Justice Rehnquist, and Justices Scalia and Thomas) to overturn the State courts decision, with Justices Stevens, Souter, Ginsburg and Breyer dissenting.

The majority saw no difference between the issues before the Court in Hurley and Dale. The crux of the Boy Scouts’ case was that Mr. Dale’s continued membership of the organization would run counter to the message that the Boy Scouts wished to communicate to their own members and the world at large about the organization’s view of homosexuality:

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms “morally straight” and “clean”.

530 U.S. 640, 650 (2000) (Rehnquist, C.J.). Presumably no irony was intended in the Boy Scouts’ choice of key words.

Requiring the Boy Scouts to retain Mr. Dale as a member would compromise the clarity of this message, and thus fell foul of the Boy Scouts’ First Amendment entitlements vis-à-vis the State.

The dissenters drew a bright line between the Hurley and Dale factual scenarios. The parade in issue on Hurley was seen as an inherently and entirely expressive activity. Insofar as the Boy Scouts promulgated a view on homosexuality however, (and the dissenters were not convinced that the organization had ever clearly put forward any such view), Mr. Dale’s membership did nothing to propagate a competing perspective:

Dale’s inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable message to the Scouts or to the world. Unlike GLIB, Dale did not carry a banner or a sign; he did not distribute any factsheet; and he expressed no intent to send any message. If there is any kind of message being sent, then, it is by the mere act of joining the Boy Scouts. Such an act does not constitute an instance of symbolic speech under the First Amendment.

530 U.S. 640, 694-95 (2000) per Stevens, J.

The judgment in Dale held back legislative attempts to advance the political cause of sexual orientation equality. Scalia, such an advocate of political majoritarianism in Romer, was notably quiet – indeed wholly invisible – in respect of that position in Dale. That silence may perhaps be explained in a principled way by the overt presence of First Amendment issues in Dale which did not feature in Romer. Just three years later, finding himself in the minority, he had no compunction in reasserting his Romer viewpoints in even more strident terms.

One might instinctively think there is something problematic about a constitutional order resting on deeply entrenched moral norms in which the final appellate court can hold that within the space of twenty years a previous judgment on an important issue can and should be overturned. Such a state of affairs might suggest a distinct lack of certainty in the constitution’s content. Concerns of that sort would obviously be mitigated as a matter of practicality if such reversals occurred very infrequently. And as a matter of doctrine one might think that the concern should be further attenuated if the previous judgment is reversed not because it is wrong now; but that it was wrong when it was decided.

The most spectacular example is surely the court’s 1942 decision in W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) to overrule the judgment given just three years earlier in Gobitis v. Minersville Sch. Dist., 310 U.S. 586 (1940); (the pledge of allegiance to the flag in schools cases).

The bench in Lawrence, as in Dale, remained the same as in Romer seven years earlier. The majority in Lawrence consisted of Justice Kennedy, J. (authoring the opinion), joined by Justices Stevens, Souter, Ginsburg and Breyer, with Justice O’Connor concurring in the result. Chief Justice Rehnquist, and Justice Thomas joined Scalia in dissent. The Court’s membership had however changed markedly from its composition in Bowers. Among the Bowers majority, White, Burger and Powell had gone, as had Brennan, Blackman and Marshall among the dissenters. Only Stevens (a dissenter), and Rehnquist and O’Connor (for the majority) remained.

The adherents to Kennedy’s opinion followed the methodology of Justice Blackmun‘s dissent in Bowers. That case, like this one, was not about sodomy, whether homosexual or otherwise:

That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual 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. 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. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

Id. at 567.

Having criticized the Bowers majority for ‘misapprehending’ the nature of the liberty entitlement before it, Justice Kennedy also took issue with its contention that homosexual sexual relations had been criminalized for many years by many of the States. Kennedy’s reading of history was that no State had criminalized such activities until the 1970s, and since then only nine had done so. Nor was there evidence to support the proposition that the tiny number of reported prosecutions for sodomy en masse from the nineteenth century onwards contained a significant proportion of same sex, consensual participants.

The Lawrence majority also criticized its Bowers predecessor for paying no attention to the fact the European Court of Human Rights in Dudgeon v. United Kingdom

[1981] ECHR 5.

Justice O’Connor, while concurring in the result, based her judgment on the Equal Protection Clause because the Texas statute, unlike the Georgia law challenged in Bowers, applied only to homosexual conduct. She did not go so far as to accept that sexual orientation was a suspect category for equal protection purposes, in which event state law would be subject to strict scrutiny rather than rational basis review.

On the internal dynamics of the judgments see Dahlia Lithwick, Extreme Makeover: The Story Behind the Story o/Lawrence v. Texas, The New Yorker (Mar. 12, 2012).

Scalia had not set the intellectual bar for dissenting judgments very high in Romer, but it is safe to say that he did not clear it in Lawrence. While his opinion identifies several weaknesses in the reasoning of both Justices Kennedy and O’Connor, it is overall a splenetic rant more suited to a locker room than a court.

The judgment begins with an implicit demonization of the litigants who have had the apparent temerity to challenge the rectitude of the Bowers majority’s opinion, casting them as having: “engaged in a seventeen year crusade”

539 U.S, 558, 586 (2003). The use of ‘crusades’ presumably being intended to denote ideological extremism.

As the opinion proceeds, Scalia continues to indulge his fondness for inappropriate metaphor. While he no longer brackets gay sex with murder, he does portray it in the same light for the purposes of majoritarian proscription as, inter alia, “prostitution” and “recreational use of heroin”, “adult incest” and “obscenity” and “child pornography” and “bestiality.”

539 U.S. 558, 592, 598 & 599 (2003) respectively.

Nor, he contends, could any credible argument be made that such laws are empirically redundant or obsolete. Scalia notes that he has uncovered: “203 prosecutions for consensual adult homosexual sodomy reported…from the years 1880-1995.”

Id. at 597.

Scalia then matches ludicrous metaphor with ludicrous hyperbole in a cringeful echo of his opinion in Romer:

This effectively decrees the end of all morals legislation. If, as the court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above mentioned laws [inter alia prostitution, adult incest and child pornography] can survive rational basis review.

Id. at 599.

That there are many ways of ‘promoting’ majoritarian sexual morality that do not entail criminalizing people whose sexual preferences do not follow majoritarian tastes is a point on which Scalia does not dwell. His main concern however appears to be the implications that the majority opinion has for the States’ capacity to prohibit same-sex marriage:

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, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen 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,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Id. at 604-05.

Scalia’s views on that specific issue are entertainingly revealed in an account of a moot he judged at NYU law school in 1996.

Murdoch & Price, supra note 5, at 517-22.

The specific target of the litigation in U.S. v. Windsor

570 U.S._—, 133 S. Ct. 2675 (2013). For a more detailed analysis, see Ian Loveland, ARight to Engage in Same Sex Marriage in the United States? Eur. Hum. Rts. L. Rev, 10 (2014).

S.3 was intended to apply to all federal measures in which marriage was a relevant criterion. It was presumably designed to disqualify same sex spouses from receiving any benefits or other favorable treatment which Congress granted to married couples. No States actually recognized same sex marriage at that time, and the Act appeared to be a pre-emptive strike lest any State (or perhaps Canada) should do so in future. The bill had been approved by 342–67 in the House, and by 85-14 in the Senate.

For a brief recall of some of the opposing voices see http://tv.msnbc.com/2013/03/28/speakmg-out-who-opposed-doma-durmg-1996-debate/.

The bill’s proponents in Congress were manifestly motivated by the animus (homophobic bigotry is perhaps the more apt descriptor) which had escaped Scalia’s attention in Romer and Lawrence. Its sponsor in the house, Bill Barr (Republican Georgia), told his colleagues that the United States was in dire peril from the onward march of the gays:

The very foundations of our society are in danger of being burned..… The flames of hedonism, the flames of narcissism, the flames of self-centered morality are licking at the very foundation of our society: the family unit.

Cong. Rec. (H 4782; July 12, 1996). See also the speech of Cliff Stearns, (Rep., Fla) speaking to Barney Frank, the gay Democrat from Massachusetts: “You do not threaten my marriage but you do threaten the moral fiber that keeps this nation together. You threaten the future of families which have traditional marriage at their very heart…”. (142 Cong. Rec. (H 7488; July 12, 1996).

Congressman Funderbunk (Republican North Carolina) had apparently not anticipated the judgment in Dale, for he was terribly concerned about the fate of the Boy Scouts of America, who were apparently: “being told to abandon their moral code of 80 years and to place young boys under homosexual men on camping trips or face financial ruin.”

142 Cong. Rec. (H 7487; July 12, 1996).

The few Democrats who opposed the bill saw no bona fide motive behind it. Senator Charles Robb (Democrat, Virginia) announced “I feel very strongly that this legislation is fundamentally wrong, and feeling as I do it would not be true to my conscience or my oath of office if I fail to speak out against it.”

142 Cong. Rec. (S 10121; Sept. 10, 1996).

DOMA’s supporters had accurately anticipated that States would begin to legalize gay marriage however. By 2013, 13 States (and Washington DC) had legislated to allow same-sex marriage,

California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington.

The composition of the Court had changed notably since Lawrence was decided. Chief Justice Roberts (Bush 2005) had replaced Rehnquist, and Justice Alito (Bush 2006) had taken O’Connor’s seat. Both might sensibly have been thought unreceptive to either the liberty or equal protection arguments against sexual orientation discrimination. Sonia Sotomayor (2009, Obama) had been appointed to the Court on David Souter’s retirement, and Elena Kagan (2010, Obama) took the seat vacated by John Paul Stevens. Both would likely be supportive of those arguments.

Given his judgment in Lawrence, Kennedy’s alignment with Breyer, Ginsburg, Sotomayor and Kagan in a 5-4 judgment invalidating DOMA s.3 was predictable. The majority’s reasoning in Kennedy’s opinion was not entirely compelling. Its core was the assertion that marriage was demonstrably a privacy right that amounted to a liberty interest under the Fifth Amendment. That assertion is of course uncontentious. The more difficult proposition to sustain is that the liberty interest in marriage is indifferent to the genders of the married couple.

To an extent, the majority sidestepped that historically difficult question by focusing on the motivation that underlay DOMA. Drawing on the Congressional debates, Kennedy saw little scope to doubt that those motives were: “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality”; and to protect: “the traditional moral teaching reflected in heterosexual-only marriage laws”.

Id. at 16.

This seemed to be Scalia’s primary concern in another hyperbolic, almost hysterical dissent. He was manifestly unconvinced by the majority’s assertion that its conclusion addressed only the constitutionality of DOMA:

In my opinion, however, the view that this Court will take of State prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion… The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare desire to harm’ couples in same sex marriages.

570 U.S._—, 133 S.Ct. 2675, 2709 (2013) (Scalia, J. dissenting).

Scalia saw no meaningful barrier to altering the language used in the majority opinion to reach embrace state laws. If DOMA humiliates same sex spouses by according their relationship an inferior (i.e. married only for state law purposes) status, then it would seem logical that state laws prohibiting same-sex marriage entirely humiliates gay couples by according their relationships an inferior (i.e. non-married) status. That Scalia foresaw and vehemently disapproved of where the majority was likely to go in a subsequent case dealing with state laws perhaps explains in part the vitriolic nature of his dissent, although as noted above his opinions in both Romer and Lawrence had already displayed that unhappy quality.

His analytical starting point was a perfectly proper one; namely that the majority was overstepping the legitimate boundaries of its constitutional role by interfering in a political dispute that should be left to elected legislators to resolve. He was however unable and/or unwilling to make that point in a dispassionately judicial style:

This case is about power in several respects. It is about the power of people to govern themselves, and the power of this Court to pronounce the law. Today, opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased roots: an exalted conception of the role of this institution in America.

Id. at 2697-98.

There is certainly some force in Scalia’s substantive point that the majority’s opinion is not securely rooted in authority, although expressing that view by deriding the opinion as “rootless and shifting”

Id. at 2705.

Scalia does eschew in Windsor however the direct demonization of gay activists that he indulged in both in Romer and in Lawrence. But while that is a welcome move towards a judgment displaying what Scalia himself calls at the end of his opinion “the judicial temperament”, he counterbalances that move and compromises his judgment’s intellectual weight by his casual, caustic dismissal of Lawrence as the case that declared: “a constitutional right to homosexual sodomy,”

Id. at 2708.

It took barely a year for Scalia’s prediction in Windsor to bear fruit. In Obergefell v. Hodges

576 U.S._—, 135 S.Ct. 2584 (2015).

Justice Kennedy presents marriage as an evolving social phenomenon. This was presumably done to pre-emptively rebut the argument that the ‘liberties’ embraced by the Fourteenth Amendment comprised only those things that had a longstanding empirical root in the fabric of American life; a quality which same-sex marriage obviously lacked:

…[M]arriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman‥… As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, maledominated legal entity….As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned…. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential…

576 U.S._—, 135 S.Ct. 2584, 2595 (2015) (Kennedy, J. for the Court).

This presumption of constant evolution enables the majority to assert that the gender identity of spouses is an ‘aspect’ - and a ‘deep’ aspect – of marriage, but is not an indispensable element of it. Rather its essential character may lie in spouses’ reciprocal desire for companionship and emotional intimacy, which is a quality not dependent on sexual orientation.

The majority offers a similarly ‘evolutionary’ perspective on the issue of ‘equal dignity’ by equating the long term rejection of the subordinate status of women vis-à-vis men with the more recently emerging attitudinal changes in modern American society to homosexuality:

Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity….Same-sex intimacy remained a crime in many States…

For much of the 20th century, moreover, homosexuality was treated as an illness….Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable….

Id. at 2596.

After rooting this notion of ‘dignity’ in the 1960s contraception cases, Justice Kennedy then finds it having been applied, albeit not under that label, in three ‘marriage cases’ in which State prohibitions were invalidated. In the first, Loving v. Virginia,

388 U.S. 1 (1967).

Scalia’s dissent is notably short in Obergefell. Equally notably, he seems here to underline the shift he made in Windsor in no longer demonizing the advocates of same-sex marriage. Indeed, he refers to them – and their opponents – in perfectly respectful terms. They are apparently not ‘crusaders’ any more:

[P]ublic debate over same sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately but respectfully attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote… .

576 U.S._—, 135 S.Ct. 2584, 2627 (2015) (Scalia, J., dissenting).

Silly metaphor has also been expunged from Scalia’s analysis. There is no suggestion of that prohibiting murder, incest or prostitution has anything valuable to tell us about whether we might also prohibit sexual orientation discrimination. Indeed, there is even a suggestion that Scalia is acknowledging the stylistic and substantive excesses of his own opinions in Romer, Lawrence and Windsor: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so”.

Id. at 2630.

The crux of this argument in substantive terms is of course simple. It is very hard credibly to view same sex marriage as a liberty in the orthodox Palko sense, if it is a legal status which has not been recognized by any State at all until very recently and which at present is recognized only by a minority of them. The same problem would attend any assertion that sexual orientation is a suspect category for equal protection purposes. This was in essence the argument made in restrained terms by Chief Justice Roberts. Scalia’s brief opinion however is an unrelenting tirade of sarcasm and abuse:

576 U.S._—, 135 S. Ct. 2584, 2630 n. 22, 2630, 2629 (2015).

There are also substantive shortcomings in Scalia’s judgment. Although he does not engage with the animus argument, he offers no explanation of why the States that prohibited same sex marriage chose to do so. That the relevant majorities in each State did do so is apparently all that is required. The main weakness in the judgment however is the way in which Scalia continually misrepresents the nature of ‘the People’. Scalia constantly equates ‘the People’ in the sense of the Article V amendment process (ie ‘the People’ with the power to amend the constitution) with the United States’ fifty geographically discrete lawmaking majorities which pass legislation or constitutional amendment under State constitutions. But these majorities are obviously not ‘the People’ in a sovereign sense. They are no more than a cluster of ‘mini-Peoples’, many of them comprising no more than a tiny minority of the true ‘People’. That ‘People’ can reverse the majority decision in Obergefell whenever and however it should choose to do so. A new amendment along the lines of: “Marriage may only be contracted between an adult man and an adult woman, and no institution of the Federal government nor any institution of any State’s government shall recognize as valid for any purposes any marriage, wherever or whenever entered into, between persons of the same gender” would achieve that result. If that is what ‘the People’ of the United States want the law to be, the Obergefell majority offers no obstacle to them doing so. It may be in practical political terms very unlikely that such a majority will emerge, but that is the point of having a constitutional order resting on deeply entrenched laws. And of course if ‘the People’ had ever felt so strongly that marriage should be an exclusively heterosexual legal status we might wonder why that view was never made clear in the text of the constitution.

Scalia manages to match substantive nonsense with stylistic excess in a section of his judgment in which he asserts that the majority are “… willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

Id. at 2630.

This is also a remarkably foolish statement. One does not “stand against” the Constitution by advocating that its text be changed or its interpretation altered. The ability to make such arguments is a basic tenet of the entire constitutional system. Did critics of Dred Scott or of Plessy or of Lochner

Dred Scott v. Sanford, 60 U.S. 393 (1857); Plessy v. Ferguson, 163 U.S. 567 (1896); Lochner v. New York, 198 U.S. 45 (1905).

Scalia concludes, with no apparent irony, with this criticism of the majority opinion:

The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

576 U.S._–, 135 S. Ct. 2584, 2630 (2015).

’Clear thinking and sober analysis’ are without doubt traits demanded of judges, especially those who exercise as much power as the members of the United States Supreme Court. It is perhaps rather a shame that those qualities seemed to be in such short supply in Scalia’s own judgment in this case.