Last edited: February 14, 2005

Anti-Sodomy Dissent Mirrors Slavery Reasoning, Scholars Say

Knight Ridder Newspapers, July 18, 2003

By Stephen Henderson

WASHINGTON—In the wake of the recent Supreme Court ruling that wiped out anti-sodomy laws, some legal scholars say parts of Justice Antonin Scalia’s angry dissent echo the reasoning used in the court’s 19th-century decision that justified slavery.

In both cases, Dred Scott in 1857 and Lawrence v. Texas in 2003, justices faced crucial questions about constitutional liberties: Are they set in stone? Or should the court take an evolving view of the Constitution and extend rights to groups the founders left out?

In Dred Scott, Chief Justice Roger B. Taney said the Constitution and the nation’s legal history offered no suggestion that blacks should have the rights other Americans enjoyed. The laws defined them as property, not people, he said, so they couldn’t be citizens.

Similarly, Scalia’s dissent from June’s landmark ruling that invalidated anti-sodomy laws argues that the Constitution and the nation’s legal history contain no explicit protections of gay sex. So gays have no fundamental right to engage in the private, intimate relations that other Americans take for granted.

“In terms of constitutional interpretation, there are uses of legal history which freeze a sense of morality in a point in time,” said Lea Vandervelde, a University of Iowa law professor who is writing two books about Dred Scott. “They don’t acknowledge that liberties should be expanding with human progress.” Scalia and other judges like him are proponents of that line of thinking, she said.

Scalia didn’t prevail in Lawrence, because only two other justices agreed with him. But his dissent is drawing more than passing attention because President Bush has described Scalia as his judicial role model. Should the president get the chance to fill one or more high court seats, he has said he would try to find judges who share Scalia’s view of the Constitution.

The issues addressed in Dred Scott and Lawrence are far from identical. And on some legal issues, the Dred Scott ruling takes the opposite approach from Scalia’s dissent. But the similarities between the two boil down to the justices’ views of constitutional liberties. Confronted with efforts to extend freedoms to Americans who were historically excluded, both relied on literal interpretations of the Constitution to support legal inequities.

“Scalia’s dissent is very reminiscent of Dred Scott, in that it embraces Taney’s cramped notion of history and the law,” said Paul Finkelman, a University of Tulsa law professor whose book on Dred Scott is one of the leading studies on the case and its significance. “Scalia, like Taney, has a view that the only liberty traditions are the ones we’ve had since the Constitution was written. Really, that ignores the very language of the Constitution, which says you can’t deny equal protection of the law to anyone.”

Justices don’t discuss cases or issues before the court, preferring to let their written words stand on their own. Scalia did not comment for this story.

Not all legal minds agree that Scalia’s dissent is like Taney’s infamous opinion. Todd Gaziano, the director of the Heritage Foundation Center for Legal & Judicial Studies, a conservative research center for legal and constitutional issues, said Scalia’s objection was to the way the court asserted a “novel” power for itself in the Lawrence case.

“He’s saying we’ve never in our history had the Supreme Court pass judgment on these issues,” Gaziano said. “They have been the kind of liberties that states had a right to regulate, and we’ve never had a court that just substitutes its own judgment for that of a legislature or Congress on this kind of issue.”

Gaziano pointed out that Scalia has taken issue with parts of Dred Scott, a complicated decision that addressed more than black citizenship. The ruling also struck down the Missouri Compromise, an act of Congress that limited slavery’s expansion. Taney thought that by doing that, he could settle the issue of slavery with his ruling.

Scalia, in his dissent in Casey v. Planned Parenthood, a 1992 abortion rights case, accused the majority of adopting a Taney-like approach to the abortion debate. Rather than let the people decide how to deal with abortion and permit “regional differences” on moral issues, the court was imposing its own nationwide solution, he said. Scalia said the court, like Taney, was prolonging and intensifying anguish over a moral issue by overstepping its authority.

“I think that’s one reason the Dred Scott analogy doesn’t work for his dissent in Lawrence,” Gaziano said. “He sees that decision as being wrong, because it tried to strike some kind of moral compromise rather than strictly adhering to the Constitution.”

Still, some of the similarities between Scalia’s and Taney’s views on liberty are striking.

Scalia writes extensively about the history of morality laws, and laws against gay sex in particular, and asserts they are “deeply rooted” in the nation’s history and traditions. Taney discussed Americans’ historical disdain for African-Americans and the long line of laws that denied them rights. He said the founders believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

Scalia cites Americans’ reluctance to accept gays as business partners, school teachers or “boarders in their homes” as the basis for laws that deny them rights that others had. Gay sex, he argues, has never been constitutionally protected. Taney said it was “too clear for dispute” that blacks weren’t included in the Declaration of Independence’s assertion that “all men are created equal.”

Kermit Roosevelt, a University of Pennsylvania law professor, said that when the court refused to update notions of fundamental liberty, the spirit of the Constitution’s promises goes unfulfilled. Roosevelt said an 1873 case called Bradwell v. Illinois was a good example.

“In this case, an Illinois lawyer sued so she could become a member of the state bar, which didn’t accept women,” Roosevelt said. The 14th Amendment, which provides everyone with equal protection under the laws, had passed five years earlier. Still, the court ruled that the ban on female lawyers was OK, because the founders provided a woman “no legal existence” beyond her husband. The “paramount destiny and mission” of women was to be wives and mothers, the court said.

“Today, this would be a no-brainer violation of the 14th Amendment,” Roosevelt said. “That’s the way in which the change in societal attitudes should inform our interpretation of the Constitution.”

The University of Tulsa’s Finkelman said the 14th Amendment in particular was written to be open-ended. John Bingham, the Ohio congressman who was the amendment’s primary author, once said its charm was its “indefiniteness,” Finkelman said. More than 130 years later, many subsequent applications of the 14th Amendment seem obvious.

“The language of the amendment makes it inherently flexible,” Finkelman said. “For example, at the time the 14th Amendment was written it was quite common to conduct a criminal trial without a lawyer representing the defendant. That was not considered a denial of due process of law. But today everyone, even Scalia, would accept the notion that a trial can’t be fair if the defendant doesn’t have an attorney.”

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