Same-Sex Marriage In Connecticut: Why Justice Scalia’s Dissent In Lawrence v. Texas Was (In Part) Right …

It was just 5 years ago that I was sitting at Sophia’s Sports Bar in Springfield with a friend.

The United States Supreme Court had just decided Lawrence v. Texas. I bet my friend $100 that within 10 years a court in the United States would find that a prohibition on same-sex couples from marrying would not survive an equal protection claim.

I made my bet because Justice O’Connor based her concurring opinion invalidating a Texas statute banning same-sex sodomy on the equal protection protection grounds. The 6-3 majority in Lawrence invalidated the statute on due process grounds.  O’Connor’s opinion went further than the majority opinion in Lawrence.

In Lawrence, Justice O’Connor quoted Justice Jackson:

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“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112-113 (1949) (concurring opinion).

Hold those words written by Justice O’Connor for just a minute. I’ll get back to them. Justice O’Connor giveth and Justice O’Connor attempted to taketh away.

Back to the bar (not the kind you pass), my friend said to me: “You’re on, that’ll never happen, I’ll gladly pay your bet.”

Less than a year later, the Supreme Court of Massachusetts decided  Goodridge v. Department of Public Health and I won my $100.

Lawrence v. Texas is at the core of the Connecticut Supreme Court’s ruling last week in Kerrigan v. Commissioner of Public Health.

In Kerrigan, Justice Palmer cites (including footnotes) Lawrence v. Texas a total of 44 times.

Justice Palmer quotes the majority opinion in Lawrence a number of times. Here are just a few of them:

Constitutionally protected right:

Thus, the United States Supreme Court has recognized that, because ‘‘the protected right of homosexual adults to engage in intimate, consensual conduct.. [represents] an integral part of human freedom”; Lawrence v. Texas, supra, 539 U.S. 576-77; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection…

Historical Discrimination Against Homosexual Conduct:

As the United States Supreme Court has recognized, ‘‘for centuries there have been powerful voices to condemn homosexual conduct as immoral.”

Due Process:

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The court identified the real issue, both in Bowers and in Lawrence, as whether the right to liberty that gay persons share with all of our citizenry under the due process clause of the United States constitution includes the right to engage in ‘‘sexual practices common to a homosexual lifestyle” without government intervention. Id., 578.

Further:

Thus, whereas Bowers erected a profound impediment to gay persons seeking protected
status, Lawrence removed that barrier. Gay persons, therefore, cannot be deprived of suspect or quasi-suspect class status merely because others may find their intimate sexual conduct objectionable, repugnant or immoral. In fact, after Lawrence, the social and moral disapprobation that gay persons historically have faced supports their claim that they are entitled to heightened protection under the state constitution.

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Thus, just as ‘‘a bare . . . desire to harm a politically unpopular group” is not a legitimate basis for a statutory classification; (internal quotation marks omitted) Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. 447; so, too, is moral disapprobation an inadequate reason for discriminating against a disfavored minority. See Lawrence v. Texas, supra, 539 U.S. 577.

A “Living” Constitution:

As the [c]onstitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence v. Texas, supra, 539 U.S. 579.

On the Significance of Lawrence:

Lawrence represents a sea change in United States Supreme Court jurisprudence concerning the rights of gay persons.

Justice O’Connor tried to limit her opinion under the Equal Protection Clause of the United States Constitution, saying that a state has a legitimate interest in preserving the traditional institution of marriage :

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case-other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

In dissent, Justice Scalia was very troubled by Justice O’Connor applying an equal protection analysis to the Texas sodomy law:

It must at least mean, however, that laws exhibiting ” ‘a … desire to harm a politically unpopular group,’ ” … are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.

Back to Kerrigan, Justice Palmer found that the State of Connecticut has “failed to provide sufficient justification for excluding same-sex couples from the institution of marriage.”

The vast majority of words written by Justice Palmer in Kerrigan explaining that under the State Constitution homosexual couples are considered a quasi-suspect and entitled to intermediate or heighted scrutiny.

Justice Scalia knew that once a court applied an equal protection analysis, a State’s argument that it had a legitimate interest in preserving traditional marriage would fail.

Justice Scalia was right, “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples.”