Justice Antonin Scalia gave a talk at the American Enterprise Institute and gave a list of the issues that had come before the court that he thought were incredibly easy to decide. He said:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion,” he said. “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”
Okay, now let’s compare that to his take on Loving v Virginia, the case that overturned state laws against interracial marriage. Scalia thinks that case was correctly decided, but why? The same argument for tradition can be made, indeed was made, against that decision. After all, laws against interracial marriage had the same centuries-long history in the common law and in every state in the country (many states had, by then repealed those laws, but the same was true of sodomy laws prior to the Lawrence v Texas case. So why does he support the result in Loving but considers Lawrence to be so obviously wrong that he dismisses it with nothing more than a “come on”? He attempts to explain it in his dissent in Lawrence:
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers-society’s belief that certain forms of sexual behavior are “immoral and unacceptable.”
So his way out of this contradiction is merely to adjust the level of scrutiny, so presumably if they had applied heightened review in Lawrence, as they had in Loving, he would have voted to overturn those laws, right? Not a chance in hell. Nor, by the way, do I believe for a moment that, had he been on the court in 1967, he would have voted with the majority in Loving. These aren’t serious arguments, they’re pretexts. Consistent application of his stated principles would require that he vote to uphold state laws against miscegenation, and I have no doubt that if he had been on the court in 1967, when racial discrimination was far more acceptable to society, he would have voted to uphold them. As I wrote back in 2006:
This type of reasoning is quite odd, especially coming from a Justice who roundly criticizes the use of the purpose prong in the Lemon test. Suddenly here, purpose means everything. But even if that was true, any reasonable person would recognize that laws which imprison homosexuals for engaging in anal intercourse while not punishing heterosexuals for the same action (the Texas law specifically targeted only sodomy between those of the same sex, not between those of different sexes) has both the purpose and genuine effect of maintaining “heterosexual supremacy” in the same manner that miscegenation laws were designed to maintain white supremacy.
It’s also odd to argue that rational basis review is satisfied merely by reference to “society’s belief that certain forms of sexual behavior are immoral and unacceptable.” This is a tautology; it argues, in essence, that there is a rational basis for the law so long as those who favor such laws agree with the law. But the same could obviously be said about Loving. It was society’s belief, at least in those states that had such laws, that among the “forms of sexual behavior” that were “immoral and unacceptable” were all forms of sex between people of different races.
Is Scalia then going to argue that the Virginia law at issue in Loving would have survived rational basis review even when he himself admits that the law was “designed to maintain white supremacy”? Apparently so. It seems quite odd to me for someone who calls himself a textualist and an originalist would put such faith in the different standards of review. Either the law violates the text and meaning of the relevant constitutional provisions or it doesn’t, one would think. To say that the law violates the text of the constitution if you apply one test, but not if you apply another, is rather anachronistic for a textualist to argue, particularly a textualist who also argues in other cases that one should ignore all statements of legislative purpose and history.
Also bear in mind that, as an advocate for finding the original public meaning of a constitutional provision, Scalia would undoubtedly have noted that the men who wrote the 14th amendment explicitly told the voters that the equal protection clause would not invalidate state laws against interracial marriage. Again, if he were to be consistent, he would have to be against the ruling in Loving.
In other words, as we’ve seen so many times before, Scalia is a man of principle except when he isn’t. When textualism and originalism get him to the result he likes, he uses them; when they don’t get to the result he likes, he throws them out. Just as he did when he declared in Raich that the interstate commerce clause gave Congress the power to regulate medical marijuana that was neither interstate nor commerce, then in the health care reform challenge suddenly decided that that same clause did not give Congress the power to regulate an undeniably interstate insurance market. And all this while he smugly slams liberal judges for not having the kind of coherent, principled theory of interpretation that he has.