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The Three S's: Sodomy, Soothsaying and Scalia

Supreme Court Associate Justice Antonin Scalia. (Photo: Stephen Masker/flickr/cc)

Never in our full life could we hope to do such work for tolerance, for justice, for man’s understanding of man, as now we do by accident.
—Bartolomeo Vanzetti, Letter to his son

Call it prescience. More especially since, as he makes abundantly clear, he would never in a million years, have anything to do with such an outcome. He simply, in his role as soothsayer, saw it coming.

It goes back 12 years to the case of Lawrence v. Texas. How that case should come out would have seemed by some to be a no-brainer rather than, as Antonin Scalia suggests in his vigorous dissent, a hare-brainer From the perspective of 2015 it seems almost incomprehensible (unless you think like Justice Scalia) that in the early part of the 21st Century the state of Texas would go all the way to the U.S. Supreme Court to defend Sec. 21.06(a) of the Texas Penile [not sec] Code. That statute made it a crime for two persons of the same sex to engage in certain intimate sexual conduct that was offensive to Texans. The conduct of the individuals whose appeal the Court heard were adults and the proscribed conduct giving rise to the case was private and consensual.

Many of my readers would, upon reading the language of the statute, dispose of it in only a few words since it is absurd on its face and completely out of touch with modern times. Most adults think that what goes on in private between two consenting adults concerns the participants and no one else. Anyone thinking that way has not, of course, considered Justice Scalia. Not only is he firmly in the corner of the bedroom peepers but he shows his allegiance to their cause in somewhat more than 6000 words. In those words, however, he demonstrates a foresight that would take 12 years to be realized.

In describing the evil inherent in striking down a statute that bans sodomy in the home among consenting adults he suggests such a criminal statute is no different from laws “prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.” Only someone with Justice Scalia’s keen intellect would spot the similarity between sodomy in the bedroom between consenting adults and baking bread.

His wisdom is felt throughout his dissent. It is at the conclusion of his 2003 dissent, however, that Justice Scalia’s prescience is manifest. It is there he said that: “Today’s opinion (that tells Texas to get out of the homosexuals’ bedrooms) dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purpose of proscribing that conduct. . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution. . . .” If he got nothing else right in his 2003 dissent, he at least got that part right.

In Obergefell v. Hodges announced on June 26, 2015, the majority of the Justices concluded that the right of homosexuals to marry is enshrined in the United States Constitution. Justice Scalia, for whom nothing has changed in 12 years, was distressed. In his dissent he observes that when the Fourteenth Amendment was ratified in 1868: “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. . . . We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.” He then observes, however, albeit in somewhat convoluted fashion, that since “the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.” A reasonable translation of the foregoing suggests that individual states and not his colleagues should be the ones to decide whether or not to recognize marriage between non-heterosexual couples

Always a defender of what people thought in earlier times and the importance of crediting their views, he describes as singularly offensive that his colleagues’ think that “every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriage in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. . . . These Justices know . . . . that an institution as old as government itself [marriage], and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.” Those observations suggest that Justice Scalia neither believes in, nor approves of, evolution.

In a footnote commenting on the majority opinion Justice Scalia says the Court has “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” A fortune cookie found by Justice Scalia would contain a one-word aphorism: “Balderdash.”

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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