The most bizarre arguments Antonin Scalia made to keep sodomy laws on the books

It’s hard to imagine that it was illegal to have gay sex in many states in the U.S. just 20 years ago and that such laws were mainstream enough for three out of nine Supreme Court justices to have openly supported them.

Supreme Court Justice Antonin Scalia wrote the dissenting opinion in Lawrence v. Texas in 2003, which Justices Clarence Thomas and William Rehnquist signed as well. The case overturned sodomy bans and came less than two decades after Bowers v. Hardwick in 1986, a case where the Supreme Court upheld those anti-sodomy laws.

Related:

10 reasons to celebrate the 20th anniversary of the Supreme Court’s Lawrence v. Texas decision

It has only been 20 years since homosexuality was legal throughout the United States.

While Scalia contended that his decisions were based on a dispassionate analysis of the law, the law is inherently political and he wasn’t able to write an opinion supporting sodomy laws without relying on outdated stereotypes, silly slippery slopes, and weak arguments that hold little weight if one isn’t just already plain biased against LGBTQ+ people. His bias in favor of those who want to discriminate against queer people and his conflation of child sex abuse with gay sex between adults shows how his outlandish preconceptions influenced his legal reasoning.

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That is, he was clearly not unbiased.

Here are some of the most outrageous quotes from his dissenting opinion in Lawrence.

He compared consensual sex between adults to non-consensual sex, including bestiality and sexual abuse

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.

States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography.

One of the big issues that Lawrence addressed was whether states could ban something just because the state government found it immoral, even if it hurts no one. Scalia argued that states had a right to put people in jail just to show moral disapproval because it happens all the time. To prove this, he pointed to things… where someone isn’t able to consent, like child sex abuse materials and bestiality, or situations where someone often gets hurt, like adultery, incest, and bigamy.

Comparing homosexuality to child sex abuse — something anti-LGBTQ+ advocates have done for centuries and are still doing today — is one of the oldest attacks on LGBTQ+ people. LGBTQ+ people are not more likely to abuse children, but anti-LGBTQ+ activists say that they are, mostly because they know it will stir up antipathy against LGBTQ+ people.

If states can’t stop two men from boinking, society collapses

Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…. What a massive disruption of the current social order, therefore, the overruling of Bowers entails.

The majority in Lawrence argued that it could overturn Bowers because, among other reasons, it’s not like many people depend on sodomy laws being enforced. There wouldn’t be big, negative consequences to bystanders if people’s privacy was protected in this situation.

Not so, argued Scalia. The current social order will face “a massive disruption,” he claimed. Notably, he didn’t actually name anyone whose life would be disrupted if gay sex were legally sanctioned in Texas.

Sodomy laws aren’t homophobic because they also ban straight people from having gay sex

On its face [Texas’s sodomy ban] 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.

It’s hard to believe it today, but Scalia had a reputation as a conservative intellectual leader, even though his opinions often just repeated right-wing media talking points that can’t stand the least bit of scrutiny.

Sure, straight people and queer people were banned from having gay sex, but… why would straight people want to have sex with someone of the same sex in the first place?

This argument would come up again in the fight for marriage equality a decade later, and it was just as silly then. Banning something that only a minority does and then pretending the law doesn’t target the minority assumes that the audience is extremely gullible.

If sodomy is legalized… same-sex marriage could be next!

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.

Today’s opinion 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 purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

“If we say that discriminating against LGBTQ+ people is bad in this one area, people might think that anti-LGBTQ+ discrimination is always bad!”

The homosexual agenda has taken over the legal profession

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…. 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.

The idea of a scary “homosexual agenda” was popular at the time among anti-LGBTQ+ activists. It’s not clear what exactly the agenda was beyond equal rights, but the point was to dehumanize queer people by making their basic demands — like asking not to be thrown in prison just for existing — seem like they’re coming not from an oppressed minority seeking equal rights but from a fringe ideology with far-reaching and scary goals.

What about the homophobes? Will somebody please think of the homophobes!

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.

Scalia didn’t believe that gay people were an oppressed minority that needed protection from state-sanctioned discrimination. And here he effectively explains why. It’s not that he didn’t know the evidence that gay people were being discriminated against; it’s that he had more sympathy for the discriminators than for the victims of discrimination. A school district’s right to ban gay teachers or a landlord’s right to ban gay tenants, to Scalia, were both more important than a gay person’s right to housing or a teacher’s right to be themselves.

He dissented in a ruling that was basically about whether gay people have a right to exist

I dissent.

Separating people based on sexuality and treating some people worse because of who they are attracted to and love is an inherently discriminatory system. There is no way to support such a system without using blatantly discriminatory or bad-faith arguments.

That is, for all his sophistry, if the case were about a state that banned heterosexual, married couples from engaging in normative sex, Scalia’s arguments either wouldn’t apply or he would suddenly have a change of heart about them.

That is, he clearly started with his desired policy result in this opinion and made up asinine arguments of varying levels of silliness to support it.

Scalia is dead, and so is Rehnquist. Thomas is the only one of the three Lawrence dissenters who is still alive and on the Court, and he wrote in a concurring opinion in Dobbs v. Jackson Women’s Health Organization that he still believes that the Supreme Court should revisit Lawrence. No other justice signed on to his concurring opinion.

Twenty years is an uncomfortably short amount of time for queerness to be legal in the U.S., and it’s not surprising that many of the arguments above have been re-tooled for use against transgender people, especially transgender youth. Instead of the “homosexual agenda,” it’s “gender ideology.” Instead of people having a right to express moral disapproval of gay people, it’s “parents’ rights” to prevent their kids from learning to accept their trans classmates. And the comparisons to child sex abuse are still being used to scare people into opposing equal rights.

It’s possible that the now-conservative court will rule on trans people’s rights in the years ahead. Hopefully, it will neither rely on shoddy reasoning like Scalia’s nor waste the opportunity to affirm trans people’s right to exist.