Alex Blaze

Sodomy wasn't born yesterday

Filed By Alex Blaze | November 23, 2009 1:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: Antonin Scalia, law, lawrence v. texas, originalist, supreme court

Antonin Scalia is apparently doing a speaking tour supporting the "originalist" interpretation of the Constitution, whereby a justice has to use his or her telepathic powers to read the minds of people who died 200 years ago, a power they only use for the fair and correct application of the law. The fact that it ends up being pretty unfair to anyone who isn't a wealthy, white man is pure coincidence - the Constitution just so happened to be written exclusively by rich, white, male idealists because they were just more into writing legal documents back then. Women, the poor, the uneducated, and black people were all invited, but they just didn't turn out. You can imagine how disappointed Thomas Jefferson was.

But one statement that caught my eye was this:

Did any provision of the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding. Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer.

Yes, Scalia's still against the majority in Lawrence. It's funny that he prides himself in being impartial and taking his personal bias out of his decisions since his dissent in that case reads like standard-issue, partisan, homophobic screed that could be used to justify any and all discrimination against gay people. (In fact, he says just that.)

But, hey, we know it's objective because he wrote it. Bias, for self-proclaimed "originalists" and "literalists," is narrowly defined as "the opinions, experiences, or point of view of someone who's not me."

What gets me, though, isn't the fact that Scalia is a conservative trying to impose his will on America through the legal system. That much we knew. It's the ludicrous implication that the Founding Fathers had never heard of sodomy.

Not only am I certain that sodomy was happening (and rampant) at the time the Constitution was being written, I'd go so far as to say that some of the folks at the Constitutional convention were Grade-A practitioners of sausage-stuffing, and at least everyone there understood what sodomy was. Maybe we should go look at those original copies of the Declaration of Independence to see if anyone started off his signature with a pink glitter quill before being told to butch it up.

And even the ones who weren't having sex with men were definitely having sex and probably wanted to keep on having sex.

But do we know what a group of sex-having revolutionaries who fought against one of the most authoritarian and anti-democratic regimes in history thought about police busting into people's houses and arresting them for not having sex properly? Or did they simply never imagine that the US government would even want to do such a thing? Or did they, as Scalia implies, want the police to have that sort of power?

According to the majority in Lawrence:

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880--1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14--15, and n. 18.

So Scalia's snarky statement that "No one thought" that it was unconstitutional for the state to develop a system of criminalizing, surveilling, and prosecuting adult, consensual sexual relationships to prevent homosexuality "for almost two centuries after the founding" of the country doesn't really make sense. If anything, it shows that for about two centuries after the founding of the country people were generally against such a system.

Scalia's response to that, in his dissent in Lawrence, is that there were 200 prosecutions for sodomy in the US before 1995 (he doesn't specify when) and 20 prosecutions for sodomy during colonial times. Yup, 20. And he doesn't describe the circumstances, so we don't really know if it was private, consensual sex between adults that was being prosecuted.

And, by Scalia's own logic on the death penalty, it's almost proof-positive that such laws are unconstitutional:

"My constitution provides for a very flexible system of government," he said. "The cruel-and-unusual-punishments clause means today exactly what it meant when the people adopted it. And since the death penalty was not cruel and unusual punishment then, it is not now."

How does he know that the death penalty wasn't cruel and unusual back in the day? Because it was around. Then how does he know that sodomy laws like those that existed in 2003 don't violate our right to privacy from the intrusion of authoritarians like Scalia? They weren't around. By his logic on the death penalty, we have at least a strong indicator that the Founding Fathers were against sodomy laws.

Of course, this isn't about logic. This is about justifying some of his deepest biases with a "literal interpretation" of the Constitution, in much the same way that conservative Christians justify their biases with a "literal interpretation" of the Bible. Sure, Scalia's more intellectual about it, but this, from his dissent in Lawrence, isn't an "originalist" legal argument. If anything, it's a basic "discrimination is good" argument:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

The lines between the "they" that think they have to protect themselves from the homosexual lifestyle and Scalia himself are definitely blurred. He's technically making the argument that people have a right to decide for themselves, through their legislative bodies, that they want to "protect" their families from gay and lesbian people in schools, etc. But, in doing so, he's saying that there would be legitimate and rational for them to want to do so.

Also, for someone who says he believes that the law, in and of itself, should reign supreme, he seemed awfully worried about the effects of the Lawrence decision. In several places, he says that the logic of Lawrence could be used to justify same-sex marriage. He doesn't provide any sort of impact to that argument, so I suppose everyone is just supposed to be shocked that that's the end to which the argument that gay and lesbian people are entitled to equal rights can be taken, pee their pants, and agree with Scalia.

But if a textual, literal interpretation of the Constitution leads to the conclusion that same-sex marriage should be legalized, then where's the legal argument for an "originalist" like Scalia? He might say that since same-sex marriage wasn't around at the time the Constitution was written that that means that there's no right to it, but that squarely contradicts his apparent agreement with Loving v. Virginia, which legalized interracial marriage almost a century after the 14th Amendment was ratified.

For nearly a century, no one thought the 14th Amendment legalized interracial marriage, so does that mean that it didn't and that Loving is incorrect? Well, no, I guess not, since Scalia's problem is with gay people, not interracial couples. And there is the intellectual honesty of Scalia's argument.

And Scalia betrays his conservative activism rather easily. Here's some more from one of his recent speaking engagements:

Scalia said the originalism debate is an important subject for more than lawyers.

"It's something we should all be concerned about," he said. "I hope we can get back to where we used to be. I'm not at all confident that we can."

It's not about a literal interpretation of the Constitution, it's about "getting back to where we used to be," or getting to a certain point. It's about a goal, not a process. It sounds similar to those supposedly originalist Senators berating Sonia Sotomayor for not reaching their preferred policy goal in her rulings.

Sure, his "goal," he'd argue, is a certain process. But he refers to that process as something that never existed, a period of time when judges didn't allow their personal points of view to affect their rulings, when the "originalist" point of view reigned supreme. The Court has been overturning its rulings for a long time, which suggests that different people can come to different conclusions about the "original" meaning of the Constitution, if that is what those justices thought they were doing. And once we accept that two people can have two literal interpretations of the same document, the question becomes "How?"

In my own little originalist world, I find the idea that the Founding Fathers wanted police to have the power to bust into people's homes and arrest them for not having sex properly absolutely ridiculous. But in Scalia's, of course they were conservative Christians in the post-modern vein who wanted to surveil and punish the peasants for putting the right peg in the wrong hole (because a penis is never wrong). Somehow, originalism isn't as simple as it he makes it out to be.

In fact, the originalist interpretation of the Constitution seems a lot more like a Rorschach than a photograph. Instead of looking at the Constitution and seeing a contract written in clear, modern English that takes into account most major conflicts that could come up in 2009, people like Scalia (and myself, and everyone else) look at it and see what we see based on our experiences and dispositions. And everyone does this because we believe that the Constitution is supposed to be a relevant document instead of one only concerned with such 21st century issues like preventing troops from being quartered in private homes.

He could just drop the illusion that there are some people who know better what the Founding Fathers were thinking than others and just face the fact that he just doesn't much like gay people. Or, if he's really attached to originalism, he could just admit that his homophobia prevents him, in this one case, of objectively conducting the studious research that would show what the Founding Fathers intended when it came to butt-sex.

He won't, though. There's power in saying that you're not just right, but that you're normal. Your opinion or interpretation isn't just the best interpretation or opinion, it's the only correct opinion or interpretation. And it's a whole lot easier to pretend like a group of dead people who can't speak for themselves tell you what to do than to go through difficult process mature people undergo when they apply their opinions and analyses and interpretations to other people: stopping and asking why it is, really, they believe what they do.

It's definitely more fun to pretend like your differences of opinion with others only exist because they aren't objective, because they don't care about being correct, and because they are biased by the mundane world of their own experiences. It's a lot harder to grow up, recognize that other people's experiences are just as valid as yours, but still argue that your conclusions are better or more correct.

Most of all, though, I'd just like to remind people that this is one of the people that will be deciding the famous Boies and Olson case to overturn Prop 8. And he's not alone; he has three buddies who will probably go along with him. That leaves five justices that have to fall in line to win. What are the chances that at least one of them falls into the "Gay people deserve equal rights, but marriage is a whole 'nother thing" category? What are the chances that at least one of the five is generally not OK with gay people and will let that affect his or her decision? What are the chances that at least one of the five justices will just not buy Boies and Olson's arguments? What are the chances that at least one of the five justices left will just not want to rock the boat, as the Court has historically followed public opinion on divisive social issues?

Just sayin', Scalia himself hasn't evolved much. There's little reason to believe that the Court has, either.

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Great piece.
I always wondered why conservative legal opinion seems to be grounded more in principle than on science and/or experience....

It was Scalia's dissent in Lawrence which gave us our name: the So-Called Homosexual Agenda.

Abortion was frequently practiced in North America during the period from 1600 to 1900. Many tribal societies knew how to induce abortions. They used a variety of methods including the use of black root and cedar root as abortifacient agents. During the colonial period, the legality of abortion varied from colony to colony and reflected the attitude of the European country which controlled the specific colony. In the British colonies abortions were legal if they were performed prior to quickening. In the French colonies abortions were frequently performed despite the fact that they were considered to be illegal. In the Spanish and Portuguese colonies abortion was illegal. From 1776 until the mid-1800s abortion was viewed as socially unacceptable; however, abortions were not illegal in most states.

by the way did you notice the "homosexual" in front of the term "sodomy?"

Talk about biased. Scalia obviously isn't concerned if some heterosexuals have some fun within the privacy of their bedrooms He's only concerned when some gay people have some fun within the privacy of the their bedrooms.

Scalia might be careful about his arguments regarding "originalism" --- seeing that the US Constitution does not explicitly state that the Supreme Court can practice judicial review, i.e. specifically, reviewing state and federal laws and deciding whether they are in agreement with what the Constitution allows. That practice started with John Marshall --- it raised quite a few eyebrows at the time, but ultimately prevailed.

Scalia's argument is that if a provision isn't explicitly present in the original Constitution, then it doesn't exist --- but by that approach, he would wipe out the power of judicial review itself, and reduce the role of the Supreme Court to merely a federal appeals court of last resort. I doubt that he would be happy to give up that much power.

I find the arguments for the US Constitution to be frighteningly alike the arguments for basing one's faith on the Bible. I seriously doubt that Jefferson was inspired by God, and that the signers of the Constitution approved a flawless document, inerrant in its original form, good as is for all ages. I certainly hope Jefferson was not a prophet, given his equating sodomy with rape, and the grotesque punishments he envisioned for men and women who engaged in sodomy.

In 1779, he drafted a criminal statute for the State of Virginia that read, “Whosoever shall be guilty of rape, polygamy, or sodomy with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.” (Virginia Bill number 64; authored by Jefferson; June 18, 1779)

Until our US Constitution spells out, in no uncertain terms, that the government has an affirmative obligation to prohibit discrimination, criminalization and inequality based on bias, we should not fall into the trap of basing our apologetics on "were the founding fathers okay with gay?" History and its interpretation are far too susceptible to revision by the prevailing powers of the day.

Check out Jonathan Katz's research on colonial American "public morality" law

Sodomy was a capital crime in all 13 colonies (though Pennsylvania de-capitalized it by 1700, as I remember). Not surprising, since all the colonies were some variety or Protestant, and were guided in their attitude by the Bible.