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Wednesday, October 4, 2023


Scalia’s warning proven ridiculous

The 2003 verdict of Lawrence v. Texas was a needed step in the direction of eliminating discrimination based on sexual orientation. In 1998 two men were arrested and convicted for engaging in consensual sex under archaic laws that declared sexual acts between same-sex couples illegal. Although the Supreme Court ruled in the plaintiff’s favor, the case has wider implications for the current same-sex marriage debate raging across the nation.†

Lawrence v. Texas reversed a similar 1986 case, Bowers v. Hardwick, and found Texas "sodomy laws" unconstitutional under the 14th Amendment’s due process clause. The ruling also nullified similar laws in 12 other states and extended to heterosexual adults engaging in "sodomy."†

Justice Anthony Kennedy’s majority opinion asserted sexuality is a sign of a greater bond between two individuals and liberty in the Constitution gives homosexuals a choice for this bond. Justice Sandra Day O’Connor concurred with the majority, but instead used the equal protection clause to apply to the case. Justice Antonin Scalia’s dissenting opinion defended the laws, saying it is ultimately up to the states to decide the immorality of homosexual acts and whether or not to criminalize them. Scalia warned that laws against other deviant acts like same-sex marriage or adultery would be "called into question" by the decision, as well as stating the court was pandering to the "homosexual agenda." Chief Justice William Rehnquist and Justice Clarence Thomas backed Scalia’s opinion.†

Despite Scalia’s warning, no laws against acts such as incest and child pornography have been struck down because of the Lawrence case. It would seem that if Scalia were right we would have continued down the slippery slope of legalizing bestiality as he forecasted.

However, he was correct in that Lawrence v. Texas has been cited as a precedent for same-sex marriage bans lifted in Massachusetts and, most recently, in California. Scalia’s arguments have also been modified and used to denounce same-sex marriage as destroying the moral fabric of society and tearing apart the "traditional" idea of marriage.†

These arguments are old and absurd. "Destroying society" is a more dramatic and loaded phrase than the more accurate "shaking the status quo," which is what Lawrence v. Texas and subsequent efforts to allow same-sex marriage entail. Loving v. Virginia of 1967 shook the status quo by declaring interracial marriage bans in Virginia unconstitutional. Not surprisingly, the arguments against same-sex marriage were also used to bar interracial marriage: it is ultimately up to the states to define marriage laws; it is against God’s will; it is "unnatural."

An initiative has been proposed in California to ban same-sex marriage on the November ballot. Although the concept of "in the hands of the people" is a tempting and democratic idea, the results are far from democratic. It should not be "up to the people" to determine who has which rights. Voting on rights denigrates the rights of minorities and tears down the democratic principle of concurrent majority that many Americans cherish. The whim of the majority sways with the wind and is subject to change at any moment, making it highly dangerous for the people to vote on freedom.

The Lawrence case signaled a battle that will most likely not be won by either side in the near future. It is highly doubtful we will continue down the slippery slope to legalizing sex with minors and other victimizing behaviors as commentators frequently argue. It is also highly unlikely that the family unit will disintegrate. Society has responded and reacted to controversial decisions made by lawmakers previously and has been able to hold together without the nation falling apart.

The concept of greater equality for the lesbian, gay, bisexual and transgender community being dangerous is not only ludicrous, it is also a sign of imposing an unreasonable ideal on entire groups of people.

America is a strong nation and will survive same-sex marriage just as it survived the abolition of Jim Crow laws and voting rights for women.

Corgey, a political science junior, can be reached via [email protected].

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