Smell Tests
By A.D. Freudenheim  

26 October 2003

In a bizarre set of remarks made to the Intercollegiate Studies Institute, Supreme Court Justice Antonin Scalia recently criticized the Court’s ruling in a Texas lawsuit that effectively legalized (consensual, adult) homosexual sex. In an Associated Press article reporting on Scalia’s talk, he is quoted as saying that the Court “held to be a constitutional right what had been a criminal offense at the time of the founding and for nearly 200 years thereafter” - suggesting that the decision not only marked a radical shift in thinking by his fellow Justices, but that it is out of step with the true intentions of the Constitution itself.[1] Scalia’s remarks focus on the U.S. Constitution not only because of his eminent role as an interpreter of U.S. law, but because he believes the Constitution to be a near-perfect document and one that should be observed and followed as written.

Yet the Constitution had (and still has) many flaws. Likewise, as Justice Scalia surely knows, laws and ethics are not always the same thing, nor are they always in alignment. Laws are the applied rules of conduct for a given community of people; these laws might be based on acceptable ethical standards – acceptable by a particular community – but are not always in alignment with accepted ethics. Both ethics and laws tend to evolve over time, but it often seems that the changes to laws lag far behind the related changes to the ethical standards on which the laws were originally based; eventually these laws must be reviewed and either updated or discarded. The question to be asked is whether a situation passes the “smell test”: is it legal, is it ethical, and is it both?

One of the clearest conflicts between Constitutional law and ethical standards concerned the acceptability of slavery and the subsequent, continued legal discrimination against African-Americans. The Constitution as originally written not only affirmed the legality of slavery, but took that legality as a basic working assumption for people’s personal and political lives. Nor was the change in U.S. law eliminating slavery initially effected through the broad mechanism of a Constitutional Amendment; the Thirteenth Amendment only happened after the conclusion of the Civil War in 1865. Rather, particular states across the country began to abolish slavery on their own terms, without waiting for Federal intervention, in the period before the Civil War. In this case, the ethical standards promoted by the Abolitionists were clearly ahead of the legal standards. Eventually, this evolution of beliefs – that slavery is morally and ethically wrong – caught up with the legal standards.

That said, I do not think that Justice Scalia would advocate a return to U.S. law pre-Thirteenth Amendment. Nor do I think he would say that the laws abolishing slavery prior to the passing of this Constitutional Amendment were “unconstitutional”; these were legal adjustments motivated by changes in the ethics of the people themselves. That the new laws were implemented through state legislatures, a bloody war, and the eventual passing of a formal, Constitutional amendment – and not by the Supreme Court – neither enhances nor degrades the legitimacy of the laws themselves. What should matter in this case is that they addressed a serious inequality in America.

All of which makes Scalia’s remarks about the recent ruling on homosexual sex seem much less like rigorous thinking about the interpretation and application of Constitutional law; it undermines his (apparent) suggestion that the Constitution’s legal standards are – by default – in line with American ethical standards, whether those standards are from 1787 or 2003. Rather, it looks like legal sour grapes, stemming from what are presumably the Justice’s deeply-held Roman Catholic beliefs: he believes homosexual sex to be unethical and therefore wishes it to remain illegal. That hardly passes the smell test. On this point I suspect Scalia is increasingly out of step with the majority of American opinion, and with a change in American ethics recognized by the Court: that homosexuals have a right to do what they want as consenting adults, provided their actions do not inflict harm on anyone else.[2]

[1] “Scalia Ridicules Court’s Gay Sex Ruling,” by Anne Gearan, Associated Press, 23 October 2003
[2] The full decision in the case, Lawrence v. Texas, is available on the web here.
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