Ethics & Religion
February 17, 2016
Column #1,799
Scalia Will Be Missed
By Mike McManus

In the seminal decision of 2003 about whether gay sex is legal, Lawrence v Kansas, Justice Antonin Scalia dissented not because he favored penalties for homosexual conduct, but because the U.S. Constitution simply does not contain a fundamental right to sodomy.

Scalia presciently warned in his dissent that the ruling would inevitably lead to gay marriage and the striking down of laws against polygamy, bigamy, adult incest and bestiality because the Court was effectively banning states from considering the morality of sexual practices as an intrusion into the personal and private life of the individual.

Not a single state at the time allowed gay marriage. However, a year later, as Scalia predicted, Massachusetts became the first state to do so. Few state legislatures approved of same-sex marriage (SSM), although courts began to impose it in other states.

In 2011 I wrote a column giving 10 reasons to oppose same-sex marriage.

Here are two:

1. Gays are not interested in marriage. Seven years after Massachusetts legalized SSM, only 12,000 "married" - just 14% of the state's gays and lesbians.

2. Children need a mother and father. "Marriage is the union of a husband and wife for a reason: these are the only unions that can make new life and connect children in love to their mom and dad," said Maggie Gallagher, past President of the National Organization for Marriage.

In 2013 the Supreme Court issued 5-4 decision invalidating the Defense of Marriage Act (DOMA) which was passed in 1996 by a vote of 342-67 in the House and by 85-14 in the Senate. It limited federal marriage benefits to heterosexual couples.

In the decision overturning DOMA the majority stated, "What has been exploited to this point should...establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage."

Nonsense. There were no such marriages in 1996. Clinton and Congress had no hatred of gays, but simply backed traditional marriage.

Scalia wrote a stinging rebuke of the decision: "In the majority's telling, the story is black-and-white. Hate your neighbor or come along with us." In so doing, "the Court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from a fair defeat."

Scalia again warned that the Court's next step would be to impose same-sex "marriage" on the nation.

I predicted that would not happen because the Court did not use the DOMA case to declare same-sex marriage as constitutional. Alas, I was wrong and Justice Scalia was right. The Lawrence and DOMA decisions were cited by the Court in last year's historic 5-4 Obergefell decision, that the Constitution guarantees a right to same-sex marriage.

"No longer may that liberty be denied," wrote Justice Anthony Kennedy, the one conservative who sided with the Court's four liberals. "No union is more profound that marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family."

However, Justice Scalia called the decision a "threat to American democracy," because it robs citizens of "the freedom to govern themselves." He flatly stated, "This practice of constitutional revision by an unelected committee of nine, always accompanied...by extravagant praise of liberty robs the People of the most important liberty they asserted in the Declaration of Independence and won the Revolution of 1776: the freedom to govern themselves."

Why did he say that?

By votes of 50 million to 30 million, 32 states passed state constitutional amendments that limited marriage to the union of one man and one woman. Those votes were swept aside on grounds that the 14th Amendment passed after the Civil War guaranteed that no State shall "deprive any person of life, liberty or property without due process of law."

What rot. The 14th Amendment simply gave former slaves their freedom.

Chief Justice John Roberts wrote, "The majority's argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority's position indefensible as a matter of constitutional law."

He argued that "courts do not substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws."

Scalia put it more pungently: "A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."

Scalia will be missed - and difficult to replace.

Copyright (c) 2016 Michael J. McManus, President of Marriage Savers and a syndicated columnist.