Dispatches from the Creation Wars

Scalia on Loving v Virginia

I decided to take a look and see if Justice Scalia had ever addressed the ruling of Loving v Virginia. It turns out, apparently, that he thinks the case was decided correctly, even while embracing the exact same argument made in that case by the state of Virginia. In his dissent in Lawrence, he accepted the defense’s argument that the Texas anti-sodomy law was “facially neutral” because it applied to both men and women equally – that is, men and women were equally forbidden from marrying someone of the same sex.

This is precisely the argument that was made by the state of Virginia with respect to race in Loving: blacks and whites were equally forbidden from marrying someone of a different race, therefore it does not violate the equal protection clause because both races are treated equally under the law. Scalia does a very fancy two-step in his dissent, arguing that this argument is correct in both cases, but that in Loving, because the purpose of the legislation was enough to trigger strict scrutiny:

Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself 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.

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967), 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.” Id., at 6, 11. 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,” 478 U.S., at 196.

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.

It’s also interesting to note that Scalia also accepts the other major argument in Loving when used in Lawrence, the argument that such laws had a long history and tradition going back to the time when the 14th amendment was passed and therefore could not violate that amendment. He writes:

After discussing the history of antisodomy laws, ante, at 7–10, the Court proclaims that, “it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter,” ante, at 7. This observation in no way casts into doubt the “definitive [historical] conclusion,” id., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general-regardless of whether it was performed by same-sex or opposite-sex couples:

“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” 478 U.S., at 192–194 (citations and footnotes omitted; emphasis added).

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized-which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

But the very same thing was true in Loving. Even more true, because in regard to miscegenation laws you also had the direct testimony of the men who framed the 14th amendment that the amendment was not intended to overturn such laws. Given that, it is hard to conceive of how Scalia could have voted with the majority in Loving even under heightened scrutiny given his vociferous arguing that it is the original meaning and application of the constitutional text that must determine its meaning. Thus, his accusations of inconsistency on the part of the majority, while they may be true, ring hollow coming from him.

Comments

  1. #1 MJ Memphis
    October 25, 2006

    Eh, what’s new here? It’s not like Scalia has any principles or anything. He’s just saying that because criticizing Loving, in this day and age, would be too reactionary even for him. If Scalia had been on the bench for Loving, he would have sided with Virginia, and in 50 years Scalia-esque judges will argue that of course Lawrence was correctly decided, but it is completely different from whatever discriminatory law they happen to support at the time.

  2. #2 Fastlane
    October 25, 2006

    “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.”

    Really? That seems to have become par for the course when it comes to poltically/religiously based rationalization these days.

    Ones calls oneself a fiscal conservative, then grows the government more than any administration in history, but it doesn’t matter, because you SAY you are conservative. One says one is about personal responsibility, then proceed to point fingers and any and everyone else for every little thing.

    It’s all about sound bites and talking points….reality be damned.

    Cheers.

  3. #3 Prup aka Jim Benton
    October 25, 2006

    Scalia should not be faulted for letting his own ideas rule his decisions, since I know of no Justice who has not, in fact, done this. Whether you put it in Holmes’ terms — “The life of the law is not logic but experience” — or prefer Mr. Dooley’s “Th’ Supreme Court follows the election returns,” I can think of no judge who has stated in his or her opinion on a Constitutional matter that “my heart cries out against the result I reach, but I have no choice, since the words of the Constitution bind me to this decision.”

    Scalia SHOULD be faulted for his hypocrisy — a hypocrisy that re-started at least with Bork and now has become necessary for confirmation — in pretending that he is ‘merely laying the words of the law against the Constitution.’ More importantly he should be damned for his ideas of the sort of country he wants, and which he imagines the Constitution provides for.

  4. #4 ctw
    October 25, 2006

    my (lay) understanding is that strict scrutiny is limited to so-called “suspect classes”, which although it isn’t precisely defined (at least that’s my impression from a previous discussion) is generally accepted (incorrectly, IMO) as not currently extending to sexual orientation. is any/all of this incorrect?

    my impression is that J scalia often argues using “tests” of which he doesn’t approve, perhaps feeling that he can slam them all he wants in dissents but is obliged to at least acknowldge them in deference to something akin to stare decisis. so, charges of hypocrisy (at least based on that aspect of his L dissent) may not be entirely fair.

    disclaimer: I’m not a fan of J scalia’s jurisprudential philosophy since I suspect it to be self-serving, so my intent is not to defend his approach but just to better understand the legal process.

    -charles

  5. #5 ctw
    October 25, 2006

    oh, and I don’t believe your “tautology” is one. rightly or wrongly (the latter, IMO), “the court” apparently accepts that concern with private morality is a legitimate public concern and therefore sufficient for a “rational basis”. so it’s not popularity that’s determinative but a (questionable) presumption.

    same disclaimer as above.

    -c

  6. #6 Ed Brayton
    October 25, 2006

    ctw wrote:

    my (lay) understanding is that strict scrutiny is limited to so-called “suspect classes”, which although it isn’t precisely defined (at least that’s my impression from a previous discussion) is generally accepted (incorrectly, IMO) as not currently extending to sexual orientation. is any/all of this incorrect?

    It’s pretty close, at least. Heightened scrutiny is said to apply when a law affects “suspect classes” or when it impinges on a “fundamental right”. Scalia complains that the majority in Lawrence does not bother to say either that gays are a suspect class or that the right being asserted is “fundamental.” And to an extent, he’s right; the majority did not, in fact, do those things. What they did, instead, was make a much broader and, in my view, more valid statement in favor of a general presumption of liberty. I regard this as a very positive change and I hope that he court continues in that vein (though frankly, I doubt they will). It would eliminate much of the inconsistency in our jurisprudence.

    my impression is that J scalia often argues using “tests” of which he doesn’t approve, perhaps feeling that he can slam them all he wants in dissents but is obliged to at least acknowldge them in deference to something akin to stare decisis. so, charges of hypocrisy (at least based on that aspect of his L dissent) may not be entirely fair.

    I can’t think of a test he has criticized in dissent but tried to apply when in the majority. When it comes to the Lemon test, for example, he is harshly critical of it in dissent and refuses to apply it. Ironically, one of the main reasons he opposes it is because of the purpose prong, which he regards as irrelevant. Yet he is more than happy to argue that Loving was rightly decided on the very basis he rejects in other cases. He is also highly critical of using legislative history in constitutional interpretation, yet he has violated that rule and used legislative history to reach a conclusion he wants to reach (in Edwards). I think the accusation of hypocrisy is well justified.

    oh, and I don’t believe your “tautology” is one. rightly or wrongly (the latter, IMO), “the court” apparently accepts that concern with private morality is a legitimate public concern and therefore sufficient for a “rational basis”. so it’s not popularity that’s determinative but a (questionable) presumption.

    The tautology is that this will be true in any case where the legislature decides to impede on private morality. By definition, they must have believed that private morality is a legitimate public concern or they wouldn’t have passed the law. It’s the equivalent of saying “if the legislature thinks it’s justified, then it’s justified.” That gets us back to the horrible idea of a presumption of constitutionality.

  7. #7 Grumpy
    October 25, 2006

    …the Texas anti-sodomy law was “facially neutral” because it applied to both men and women equally – that is, men and women were equally forbidden from marrying someone of the same sex.

    Typo there. Not “marrying,” but… oh, I dunno. “Buggering”? “Blowing”?

  8. #8 ctw
    October 25, 2006

    “he has … used legislative history to reach a conclusion he wants to reach (in Edwards).”

    thanks for the reply. I appreciate your willingness to spar with “an unarmed opponent”.

    edwards is embarassing to read in the same way as watching a comedian who is bombing or a singer who can’t carry a tune. I have some notes on estab clause cases I’ve read and one of them on edwards is “Scalia dissent is a study in willful ignorance”. because I’m so opposed to his views, I bend over backwards to be “fair and balanced”, but sometimes its hard to do so.

    -charles

  9. #9 kehrsam
    October 25, 2006

    If Scalia actually believes that strict scrutiny is required when a suspect class is identified de jure, then he has no trouble with Loving. The problem is that I doubt he feels strict scrutiny should be applied in such cases, or — more likely — that it should be applied as in Korematsu, with considerable deference to the Executive and Legislative branches. In other words, I think he reads the “narrowly tailored” prong as, “Competing rights were considered.”

    In Scalia’s case, I think the relevant question is not, “What do you think of Loving,” but, “What do you think of Korematsu.” I’d be interested in the ADF answer to that as well.

  10. #10 jiffy
    October 26, 2006

    I think the criticism of Scalia’s dismissal of Loving is not quite right and that the attempt to apply Loving in the gay rights context doesn’t quite work. Usually, Loving is used to argue that prohibitions on same-sex marriage (or same-sex sex) although equally applicable to both sexes is sex discrimination, just the way that Loving’s prohibition on interracial marriage, although applicable to both blacks and whites, was race discrimination. It is important to be able to label anti-gay laws as sex discrimination because sex has been held a suspect classification requiring strict scrutiny under the Equal Protection Clause, while sexual orientation has not. Scalia’s point is that the antimiscegenation laws, although facially “neutral” in their application were clearly intended to “maintain white supremacy”–that is to discriminate against blacks. Therefore, they were racially discriminatory. But anti-gay laws are not clearly intended to discriminate against either men or women, so, Scalia argues, they are not “sex discrimination” in the way Loving involved “race discrimination.” Scalia would be perfectly willing to admit that anti-sodomy laws seek to “maintain heterosexual supremacy,” but his point is, that does not invoke strict scrutiny.

    Scalia’s other point–whether the right to homosexual sodomy is a “long-standing tradition” actually goes to a different point: whether sodomy is a “fundamental right” denial of which could also trigger strict scrutiny.

  11. #11 ctw
    October 26, 2006

    FWIW, my understanding matches jiffy’s. furthermore, of the three reqs for a suspect class, the one causing the problem appears to be “immutability”.

    now while my impression is that from a biology POV this hasn’t been resolved, from a common sense POV it has. first, anyone who knows gays well knows from their personal histories that it’s not a “lifestyle choice”, it’s the way they are and mostly always have been. second, why in hell would someone “choose” to live under the impossible conditions they have lived under until quite recently.

    and I think that deep down inside, J scalia knows this too as evidenced by his rather nonsensical rebuttal to o’connor’s EP-based concurrence in lawrence.

    -charles

  12. #12 Ed Brayton
    October 26, 2006

    I agree with jiffy on Scalia’s thinking, I just don’t think it absolves him of any of the problems with the reasoning. First, because I think such tests, particularly focusing on purpose, is an odd position for a textualist to take. Second, because he specifically rejects the notion of looking at purpose in other cases. I think he’s looking for a way to distinguish Loving from Lawrence, but the way he’s come up with is not consistent with his previously stated mode of interpretation. That’s the inconsistency I point out.

  13. #13 ctw
    October 26, 2006

    “I think such tests … is an odd position for a textualist to take”

    I’m getting a clearer view on the structure of various tests, but this statement raises a still unanswered question I alluded to earlier: what is the standing of any of these court-defined tests? does the fact that they’re in prior opinions warrant stare decisis-level “respect”? or is it just courtesy? tradition? other? in essence, how much flexibility does a justice have re them?

    thanks – charles

  14. #14 Ed Brayton
    October 26, 2006

    ctw wrote:

    I’m getting a clearer view on the structure of various tests, but this statement raises a still unanswered question I alluded to earlier: what is the standing of any of these court-defined tests? does the fact that they’re in prior opinions warrant stare decisis-level “respect”? or is it just courtesy? tradition? other? in essence, how much flexibility does a justice have re them?

    Well, there are no actual rules on such matters. No judge is actually required to follow prior precedent, including district court judges and precedent set by higher courts. But everyone, practically, agrees that this is what should happen and therefore it does. So technically, they have all the flexibility they want; traditionally, they are constrained. But the Supreme Court is less constrained than lower court judges because, ultimately, they are the ones who set precedent. And they do overturn previous court rulings from time to time (Lawrence overturned Bowers 17 years after it came down; Barnette overturned Gobitis a mere 3 years later). As for tests like this one, it’s not unusual for the court to apply them in some cases but not in others.

    One of Scalia’s most famous written opinions is his concurring opinion (joined by Thomas) in Lamb’s Chapel, where he took the majority to task for using the Lemon test only when it feels like it. It was a really funny opinion. He wrote:

    Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

    The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

    This is great stuff, easily one of the most entertaining opinions ever written by a Justice. This is one of the reasons why, despite my frequent criticism of Scalia, I find him to be the most fascinating of the current court (and there really is no close second). Of all the justices, he is the one I would most like to be friends with and really get to know. I think he’s the smartest guy on the bench, and the funniest, even if I often disagree with him. And even if the criticisms he aims so wickedly at others applies to him as well.

  15. #15 ctw
    October 26, 2006

    ed -

    thanks for the quote. I know the lamb’s chapel result but haven’t gotten around to reading the opinion. you’re right – that’s quite entertaining, a major feat in an estab clause opinion.

    I agree with your assessment of scalia with only one exception, and at that more a question than a disputation: why do you – and many others, altho I trust you more than most other sources who simply agree with his results and may or may not have ever read an opinion – consider him the smartest? I see his opinions as awfully well researched and thorough, he certainly has a well-defined theory of jurisprudence which he follows pretty consistently, and he does seem to have a good sense of humor, but I see none of those as indices of brilliance. by following his theory he is severely limited in how imaginative, creative, innovative, etc he can be, and he doesn’t seem to be exceptionally prolific. by contrast, J posner’s work is so impressive that when I first heard the opinion of a justice (which one I can never remember) that posner was the only true genious he’d ever known, I wasn’t the least surprised.

    or is your assessment more a commentary on the competition on the bench?

    -charles

  16. #16 Ed Brayton
    October 26, 2006

    ctw-

    An interesting question. No, it was not a comment on the nature of his fellow justices, all of whom are very intelligent people or they wouldn’t be in that position. I guess now that I think about it, my statement is really more a casual one and not a rigorous one. I don’t have in mind a particular measure of intelligence that would place him above the others. I think he is an exceptionally good writer, and that probably contributes to my assessment quite a bit. And I admire his fearlessness and outspoken nature, but as you say, these aren’t necessarily signs of being more intelligent than the other justices. But they do give him a more interesting character, at least to me, and they make him more fascinating to me than the rest. Although to be honest, probably the second most fascinating to me is David Souter, and for the opposite reason – Souter is so reserved, so unrevealing of his private thoughts, that it makes me want to know what really makes him tick, what he really thinks about things. So I guess it really has little to do with intelligence and just has to do with who piques my interest.

    I can tell you this, though. It really annoys me when I hear people say that Clarence Thomas is stupid, or a lapdog for Scalia, or something similar – and this is a very common perception on the left, for some reason. I just don’t think anyone with any knowledge of the court could say that with a straight face. I disagree with Thomas often, but he has acquitted himself very well in his time on the court, far better than I thought he would (my initial reaction to him was that I thought he was vastly underqualified for the court and was picked only for his race; the latter remains true (no way he would have been on the short list if he wasn’t replacing Thurgood Marshall), but the former has been shown to be false. He is a good writer, a clear thinker, and far more consistent than Scalia.

  17. #17 ctw
    October 26, 2006

    “Clarence Thomas is stupid … this is a very common perception on the left, for some reason.”

    unfortunately, as you well know, the right doesn’t have a monopoly on shallow thinking. my background is in math and technology where there’s not a lot of room for subjectivity, so I am trained to be relatively objective. having entered (in large measure via blogs) the world of politics, law, religion, philosophy, et al late in life I have been quite disappointed with how very bright, very well educated, very thoughtful people of all persuasions can be so lacking in objectivity. not to suggest that I don’t have my blind biases, but I do fight constantly to keep them in check.

    one of the appeals of your posts is the manifest attempt to be objective, thereby warranting a high degree of trust. I don’t follow gurus, but my a priori (rebuttable) assumption is that your posts will be as objective as can be expected from pathetically fallible human beings.

    thanks again for your patient and informative replies.

    -charles

  18. #18 Skemono
    October 27, 2006

    Scalia’s point is that the antimiscegenation laws, although facially “neutral” in their application were clearly intended to “maintain white supremacy”–that is to discriminate against blacks. Therefore, they were racially discriminatory. But anti-gay laws are not clearly intended to discriminate against either men or women, so, Scalia argues, they are not “sex discrimination” in the way Loving involved “race discrimination.”

    Sorry to comment on this so long after the fact, but I’ve been mulling it over–would this not be a misreading of Loving? I’m not a lawyer, and I have not perused the text with a fine-toothed comb, but it seemed to me that they were saying that the laws were discriminatory because they made an irrational classification of race–saying one race couldn’t do something for no good reason. The fact that it was used to maintain white supremacy only highlighted the irrationality of the classification, but was not what subjected the law to strict scrutiny.

    I could be mistaken, though, and would very much like to hear other opinions on this.