Last edited: December 05, 2004

Scalia Blasts Court on Sodomy Ruling

Associated Press, June 26, 2003

By Anne Gearan, Associated Press Writer

WASHINGTON—Justice Antonin Scalia, during the Supreme Court’s final session of the term Thursday, accused his colleagues of inviting gay marriage in a ruling he said “coos” over a feel-good, gay rights agenda.

“The court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed,” Scalia said.

Scalia read from a dissenting opinion that, at 21 pages, was longer than the court majority’s 18-page ruling striking down a Texas ban on gay sex.

There were murmurs from some in the courtroom crowd as Scalia railed for more than seven minutes against what he called a hypocritical ruling that runs roughshod over democratically elected legislatures.

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools or as boarders in their home,” Scalia wrote.

“They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia, writing for himself and the court’s two other staunch conservatives, scoffed at the idea that Thursday’s ruling does not address same-sex marriage.

“Do not believe it,” Scalia wrote.

“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.”

The court majority “coos, casting aside all pretense of neutrality,” in describing the importance of sex in an intimate relationship, Scalia said.

The sodomy ruling may also rankle Scalia for its implications in the abortion debate.

Scalia and many other conservatives believe that the 1973 Roe v. Wade ruling allowing legalized abortion is a constitutional flight of fancy, because it relies on a general right to privacy that they do not find in the text of the Constitution.

Roe was decided by a different set of justices who sat on a more liberal court. Five members of the current court founded Thursday’s opinion on that same principle.

The court majority, led by moderate conservative Justice Anthony M. Kennedy, said government has no interest in regulating what two consenting adults do in their bedrooms.

Scalia scolded the majority for its willingness to reverse a controversial 17-year-old ruling, Bowers v. Hardwick, that allowed laws similar to Texas’. The court is ordinarily loath to reverse itself, and rarely does so in such a short span of years.

Scalia noted that three justices who voted against him Thursday also voted to uphold Roe v. Wade in a 1992 case. The majority in the 1992 case said, “to overrule under fire in the absence of the most compelling reason ... would subvert the court’s legitimacy beyond any serious question.”

Scalia strongly implied that is just what the majority did in overruling Bowers.

Texas legislators were within their rights to pass a sodomy ban, Scalia wrote for himself, Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Scalia said he has nothing against gays or anyone else trying to change their lot for the better “through normal democratic means.” Just as a state should be able to pass such a law, it could repeal it, Scalia said.

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