WASHINGTON, D.C.—When plaintiffs’ lawyer David Boies stepped to the microphones on the courtroom steps this morning to express his pleasure at today’s historic same-sex marriage decisions by the United States Supreme Court, the very first words out of his mouth was a recognition that these victories began 10 years ago to the day, with the ruling in Lawrence v Texas, which was also authored for the majority by Justice Anthony Kennedy. Boies’ nod to Lawrence was tactical as well as respectful, for both he and his opponents in the culture war know full well the pivotal nature of the 2003 ruling striking down Texas’ anti-sodomy laws, not only in terms of today’s DOMA ruling in particular, but for future cases that will depend upon, as Boies put it today, the “promise that was in Lawrence.”
Speaking first following today’s rulings, Boies addressed an enthusiastic crowd on the steps of the Supreme Court, and kept his comments relatively short but very precise with respect to his analysis of the short- and long-term significance of the DOMA and Prop 8 rulings.
“This is a great day for America,” he said. “Ten years ago today, the United States Supreme Court, in Lawrence against Texas, took the first important step guaranteeing that all Americans, regardless of sexual orientation, were equal citizens under the law. Today, the United States Supreme Court, in two important decisions, brings us that much closer to true equality. In the decision striking as unconstitutional the so-called DOMA, or defense of marriage, case, the United States Supreme Court held that there was no purpose for depriving gay and lesbian couples of the right to marry the person they love. There was no legitimate justification for that. As Justice Scalia noted, that holding, that principle, guarantees the right of every individual in every state to marriage equality. In the Supreme Court case, the court held that the proponents of Proposition 8 did not have standing. What that means is that in that case, the Supreme Court could not reach the merits; but everything that the Supreme Court said in the Defense of Marriage opinion, where they did reach the merits, demonstrates that when that case [Prop 8] finally does come to the United States Supreme Court on the merits, marriage equality will be the law throughout this land. Our plaintiffs now get to go back to California and together with every other citizen of California marry the person they love. And the next step is to translate the promise that was in Lawrence, and was reaffirmed today in the DOMA case, that every citizen in every state has the right to marry the person they love.”
Scalia, of course, may have “noted” the “principle” that “guarantees the right of every individual in every state to marriage equality,” but he certainly gave it no credence, and again today, as he did in his Lawrence dissent and has many times since, declared his unambiguous opposition to the decision by a Court he believes “has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.”
With a slight nod to his own dissent in Lawrence, deciding instead to “not swell the U.S. Reports with restatements of that point,” he did comment, “It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”
Indeed, much of Scalia’s dissent is taken up with his objection to the personalized and judgmental nature of the majority opinion, which he believes imposes “change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
He adds, “In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history.”
Scalia counters those claims with the argument that DOMA “avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage”—using as an example a theoretical speculation in which “a pair of women who marry in Albany and then move to Alabama, which does not ‘recognize as valid any marriage of parties of the same sex.’
“When the couple files their next federal tax return,” he continues, “may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.”
The “uncertainly” wrought by today’s decision is for Scalia proof positive that he was correct back in 2003 when he warned that Lawrence augured the beginning of a profound disintegration of the Supreme Court’s proper role. Not only does he still believe that, but in his Windsor dissent he was quick to remind court watchers that ten years ago the Supreme Court in Lawrence made promises regarding that ruling’s reach that it broke with today’s ruling, calling into question any further promises it deigns to make regarding the reach of this ruling.
“The penultimate sentence of the majority’s opinion is a naked declaration that ‘[t]his opinion and its holding are confined’ to those couples ‘joined in same-sex marriages made lawful by the State,” wrote the 77-year-old jurist. “When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with 'whether the government must give formal recognition to any relationship that homosexual persons seek to enter'.
“Now," he continued, “we are told that DOMA is invalid because it ‘demeans the couple, whose moral and sexual choices the Constitution protects,’ with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
It is unlikely that any of the five Justices that voted with the majority today would agree with Scalia or the others on his side that future same-sex cases are as good as decided, but neither will you get a big argument on that point from lawyers like David Boies or his co-counsel in this case, Ted Olson. They, after all, count on Lawrence to fulfill its promise not just with today’s cases, but with ones that are years in the future.
Indeed, one could also argue that the promise of Lawrence extends beyond even the right of every citizen to marry the person they love, to other forms of innate expression, including challenges to the nation’s obscenity laws, which also deprive citizens of essential rights, including their expression and, in extreme cases, their liberty.
Kennedy, after all, in writing the majority opinion in Lawrence, was unequivocal in his embrace of Justice Stevens’ dissent in Bowers, which “concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process.”
It is possible—Scalia today would say inevitable—that, as with same sex marriage, supporters of obscenity laws will one day have to try to prove in court that the damages they allege they suffer or would suffer in lieu of such laws actually exist. The outcome, we suspect, will be the same as it was with Prop 8: No provable damages results in no standing.
These cases represent the dreaded line in the sand past which opponents of both Lawrence and Windsor say the right of the People to decide what is moral and legally acceptable conduct is being taken away. It is also, as former Senator Rick Santorum has consistently stated, the real point of the culture wars. When Justice Scalia rails against the striking of sodomy laws, he is not just using sodomy as a convenient example (he has numerous other at his finger tips), but as the perfect example of the type of behavior the People have the right to proscribe. For him, it is not a gay or straight issue per se, but a right-of-the-people issue, and nothing defines the absolute right of the People to exercise their authority than the ability to arbitrate intimate behavior. That is why he consistently uses sodomy, and especially homosexual sodomy, to illustrate his judicial philosophy.
Jay-walking laws, after all, do not rise to the occasion, and neither do laws against murder, which are easily adjudicated. Only so many issues rise to the level of, as Justice Scalia put it today, a “highly emotional and important question of public policy,’ and for him as for so many others, sex (i.e. the right of the government to define acceptable sexual relations and behavior) is where the rubber meets the road. That is why everyone fixates on Lawrence.
The majority opinion and dissents in US v Windsor can be read here.
The Lawrence v Texas ruling, concurrence and dissents can be found here.
Justice Scalia may soon be able to once again address a state sodomy law. Last Thursday, Virginia Attorney General Ken Cuccinelli filed a Petition for a Writ of Certiorari with the United States Supreme Court asking it to reconsider the March 2013 ruling by the U.S. Court of Appeals for the 4th Circuit striking the state's "crimes against nature" statute. Cuccinel, who plans to argue the case himself if cert is granted, is also a candidate for governor of Virginia.