Justice Scalia was right

Wedding Bells

by Jeffrey Toobin , The New Yorker, April 1, 2013

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:

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 of 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 by the Constitution”?

What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage. Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

(More here.)