by Peter Sprigg
August 6, 2010
This week San Francisco federal Judge Vaughn Walker, in the case of Perry v. Schwarzenegger, ruled that the U.S. Constitution protects a right of same-sex couples to marry. This has sparked speculation about how the case might fare on appeal if and when it reaches the Supreme Court. Some commentators argue that the courts decision striking down sodomy laws, in the 2003 case of Lawrence v. Texas, implies that the court would also back same-sex marriage. I wrote on that subject in 2004, and below are my observations, with quotes from the opinions in Lawrence.
The nuclear bomb of the homosexual marriage movement would be a decision by the United States Supreme Court declaring that it is unconstitutional to deny homosexual couples the benefits, or perhaps even the actual status, of civil marriage.
The likelihood of such a ruling appeared to increase exponentially when the Supreme Court struck down state laws against homosexual sodomy in the case of Lawrence v. Texas, which was decided on June 26, 2003.
Dissenting justice Antonin Scalia warned as much in his scathing dissent:State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestialiy, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision: the Court makes no effort to cabin the scope of its decision to exclude them from its holding.[i]
However, a close examination of the majority opinion seems to cast doubt on Scalias sweeping claim that there was no such effort to cabin the rulings scope. For example, Justice Anthony Kennedy’s decision says this:The laws involved in Bowers and here … 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.[ii]
In other words, he concedes that these relationships may not be “entitled to formal recognition,” i.e., marriage. He goes on immediately after to say:This, as a general rule, should counsel against attempts by the state, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.[iii]
Presumably he’s speaking of marriage here, and accepting that same-sex marriage, like adultery, might constitute abuse of an institution the law protects. Then in his conclusion, Kennedy again says:The present case … does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.[iv]
Likewise, in her concurring opinion (basing her decision on equal protection considerations rather than privacy and due process), Justice O’Connor wrote:That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.[v]
In referring to national security or preserving the traditional institution of marriage as a legitimate state interest, she seems to be clearly saying that this case does not involve gays in the military or homosexual marriage.
Scalia, though, remained skeptical:This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that preserving the traditional institution of marriage is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples.
Although I greatly respect Justice Scalia, I dont fully agree with this last sentence. As I have noted earlier, opposition to homosexual marriage does not have to be grounded only in disapproval of homosexual couples, but can rest in the recognition that their relationships are by nature something different from marriage.
While the majority opinion did have passages that appeared to distinguish the issues in Lawrence from those involved in marriage, yet other passages did indeed hint at a link. For example, Kennedy said: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. The liberty protected by the Constitution allows homosexual persons the right to make this choice.[vi]
In another passage, Kennedy cited the 1992 decision in Planned Parenthood of Southeastern Pa. v. Casey (which upheld a right to abortion). Kennedy declared:The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
He then went on to state, Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.[vii]
Legal scholars on the other side of the debate have drawn very similar conclusions to Scalias. Liberal Harvard Law professor Laurence Tribe says, Same-sex marriage, as Justice Scalia predicted in his outraged dissent, is bound to follow; it is only a question of time… . [T]he underlying theory and most important passages of Lawrence suggest ready (though not immediate) applicability of the holding to same-sex marriage … .[viii]
In summary, a close reading of the Lawrence decision suggests that advocates of same-sex marriage could claim that it serves as precedent for same-sex marriagebut it would not inevitably do so.
[i] Lawrence et al. v. Texas, 123 S. Ct. 2472 (2003): 6 (page numbers cited are from the respective opinions as published in the initial Bench Opinion).
[iv] Ibid., 17-18.
[v] Ibid., 7.
[vi] Ibid., 6.
[vii] Ibid. (Kennedy), 13.
[viii] Laurence H. Tribe, Lawrence v. Texas: The Fundamental Right That Dare Not Speak Its Name, 117 Harvard Law Review (April, 2004): 1945, 1949