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.