Men in Black (10 page)

Scalia punctured the central thesis of the majority with the following observation:

He concluded, “Today’s opinion has no foundation in American constitutional law, and barely pretends [that]…. Striking [Amendment 2] down isan act, not of judicial judgment, but of political will.”
²⁸

Of course, Scalia was right. How could Amendment 2 possibly be unconstitutional in light of the Court’s holding in
Bowers
? Kennedy understood this, and he, on behalf of a majority of the justices, would soon strike back by overruling
Bowers
, the case they couldn’t square with their desired result in
Romer
. They seized on a case called
Lawrence v. Texas
.
²⁹

In 1998, a Texas sheriff’s deputy responded to a report of a man going crazy “with a gun.”
³⁰
The deputy entered the suspect’s apartment through the unlocked front door. Although he found no one with a gun, he saw John Lawrence and Tyron Garner engaging in anal sex. He arrested them for violation of Texas’s sodomy statute, a Class C misdemeanor, and they spent the night in jail. Notably, the sodomy statute in Texas, unlike the Georgia statute, prohibited conduct between same-sex couples but not different-sex couples. Lawrence and Garner were charged and convicted before a justice of the peace. Roger Nance, who had called in the complaint, was also arrested for filing a false police report, for which he spent fifteen days in jail. After a new trial in criminal court, the convictions of Lawrence and Garner were upheld by the Texas Court of Appeals. The two men sought protection under the equal protection and due process clauses of the Fourteenth Amendment, as well as the repeal of
Bowers
.
³¹

The U.S. Supreme Court took up the case, hearing oral argument in March 2003. The questions posed by the justices during oral argument revealed much about their thinking. The transcript shows Justice Stephen Breyer quoting a childish poem to mock the idea that a state could ban certain conduct simply because it didn’t like it.
³²
He also badgered the lawyer representing Texas for trying to justify the sodomy statute: “You’ve not given a rational basis except to repeat the word morality,” Breyer said, as if morality is an insufficient basis for law. Breyer summed up the main argument for overruling
Bowers
: It was not about sodomy per se, but that “people in their own bedrooms…have their right to do basically what they want, [if] it’s not hurting other people.”
³³
This is wrong as a matter of law and fact.

Before
Lawrence
was decided, Senator Rick Santorum of Pennsylvania provoked a firestorm of criticism in the media with his opinion about the case. “If the Supreme Court says that you have the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything,” he said. “All of those things are antithetical to a healthy, stable, traditional family.”
³⁴

Although Santorum was making an accurate prediction about the legal ramifications of overturning
Bowers
, he was denounced as “a bigot who spreads lies.”
³⁵
The
New Republic
stated, “It’s hard to characterize Santorum’s remarks as anything other than those of a homophobic bigot; but, rest assured, Santorum’s staff has tried.”
³⁶

In June 2003, the U.S. Supreme Court’s majority opinion in
Lawrence
overruled
Bowers
. Kennedy wrote the opinion for the majority, which was long on philosophy and short on precedent. Kennedy’s opinion in
Lawrence
is a result in search of a rationale. He began with “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places.”
³⁷
This statement means absolutely nothing from a constitutional perspective. Every criminal or immoral act can be justified on the grounds of exercising liberty. But Kennedy has a purpose in such an approach. By using the catchall word “liberty” rather than applying the Constitution to the issue, he seeks to expand the plain meaning of the due process clause of the Fourteenth Amendment (which prohibits the states from depriving any “person of life, liberty, or property, without due process of law”) to grant rights not mentioned elsewhere in the Constitution.

Kennedy and the majority explicitly overruled
Bowers
and wrote that Stevens’s original reasoning,
in dissent
, that morality alone is not a legitimate basis to support a law was right. Scalia countered, “This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, [no law against fornication, bigamy, adultery, adult incest, bestiality, and obscenity] can survive rational-basis review.”
³⁸

Kennedy, traveling further and further away from his judicial responsibility to interpret the Constitution, wrote of an “emerging awareness that liberty gives substantial protection”
³⁹
to sexual decisions and reviewed how sodomy laws had been repealed in most states and even in Europe, where the European Court of Human Rights found sodomy laws invalid under the European Convention on Human Rights.
⁴⁰
Kennedy concluded with a lecture about liberty: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their
right to liberty under the Due Process Clause
gives them the full right to engage in their conduct without intervention of the government…. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
⁴¹
(Emphasis added.)

Justice O’Connor was faced with a problem. How could she vote with the majority in
Lawrence
when seventeen years earlier she had voted with the majority in
Bowers
? She attempted to solve this dilemma with a laughable approach. She concurred in
Lawrence
’s result but provided a different rationale for her vote, arguing that the Texas sodomy statute, which prohibited
same
-sex sodomy but not heterosexual sodomy, violated the equal protection clause.
⁴²

As Scalia wrote, the Texas statute could not possibly be a denial of equal protection “since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.”
⁴³

Scalia’s conclusion describes how the Supreme Court has effectively set the terms for the gay marriage debate. He wrote:

These three cases—
Bowers
,
Romer
, and
Lawrence
—demonstrate some undeniable and unpleasant facts that need to be considered if traditional marriage is to be preserved. The Supreme Court is clearly in the business of vetoing state (and federal) legislation by inventing new and increasingly more absurd justifications. It does not feel bound by the Constitution or even precedent. It is abandoning the constitutional framework that supports the moral foundation of our laws. In the future, statutes and even state constitutional provisions that uphold the public’s moral consensus and traditions will be open to challenge.

None of this was lost on the Lambda Legal Defense and Education Fund, which saw
Lawrence
as the truly radical decision that it was:

Susan Sommer, a supervising attorney for the group, hailed the decision as an opportunity: “But even beyond what we can do with it [the Supreme Court’s decision] technically as a legal precedent, which is quite a bit, it also simply changes the landscape, changes the culture, and reflects an enormous shift in this nation. The court has sent a very powerful message to courts around the land, to legislatures around the land and to every community that gay men and women should be afforded the same dignities and liberties as everyone else. It is now a new day.”
⁴⁶

Scalia and Sommer are right. The Supreme Court has set the stage for imposing gay marriage on every state under a distorted reading of the Fourteenth Amendment. And the Supreme Judicial Court of Massachusetts might have created the circumstances under which the U.S. Supreme Court could eventually act.

In 2001, seven gay couples sued the Massachusetts Department of Public Health when they were denied marriage licenses. The couples claimed that they had a fundamental right under the Massachusetts Constitution to pick the spouse of their choice. Therefore, they argued, the Massachusetts marriage statutes could not be interpreted to exclude same-sex couples.
⁴⁷

In November 2003, by a narrowly split vote of 4 to 3, the Supreme Judicial Court of Massachusetts found that the denial of marriage to gay couples violated the Massachusetts Constitution. The court wrote, “Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.”
⁴⁸

To rectify this supposed injustice, the Supreme Judicial Court changed the common-law definition of civil marriage to mean “the voluntary union of two persons as spouses to the exclusion of all others.”
⁴⁹
While explaining their action, the court claimed that it would not be “appropriate” to strike down the existing marriage laws. Their concern rings hollow, considering that instead of striking them down, the court drastically changed a fundamental aspect of the state marriage laws. Moreover, the court explicitly adopted the approach taken by the Court of Appeal for Ontario, Canada, in a gay marriage case, by changing the common-law definition.
⁵⁰
Not only did the court usurp the state legislature, but it looked beyond its own constitution to a foreign legal system for guidance.

After it altered the definition of marriage that had existed in Massachusetts for centuries, the Supreme Judicial Court went a step further. The Court gave the state legislature 180 days to “take such action as it may deem appropriate in light of this opinion.”
⁵¹
The legislature was, in effect, given a deadline to fix the legal mess the Court had created.

The Massachusetts legislature scrambled to come up with a possible solution. An attempt by the legislature to protect traditional marriage through a constitutional amendment required longer than 180 days. The legislature decided to propose the enactment of civil union laws, which would provide many, if not all, of the benefits of marriage, except one—the name.

By a quirk of the Massachusetts Constitution, “each branch of the legislature, as well as the governor or the council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions.”
⁵²
The Massachusetts Senate asked the court to consider if the civil union proposal was constitutional, to which the court responded in February 2004 with a forceful “no.” Central to its reasoning was the terminology of the bill: