Originalism and Homophobia

Barney Frank recently made the headlines for calling Supreme Court Justice Antonin Scalia a homophobe.  Whether he meets the homophobe standard is questionable but he without a doubt thinks that gays and lesbians are not constitutionally guaranteed the same rights as heterosexuals.  He has been quite open about his social conservatism in the past and he by no means hides the ball as to his personal beliefs.  He claims, however, that these personal beliefs do not color his judicial opinions.  Rather, Justice Scalia’s decisions, according to him, are rooted in a judicial philosophy known as originalism – a method of interpreting the Constitution based on what it originally meant to the founding fathers.

His many opponents argue that his originalism is simply a cloak for his backward, homophobic beliefs.  This argument is neither convincing nor relevant.  There is a common misconception among law students that originalism necessarily connotes socially conservative values.  Yet even the most fervent champion of gay and abortion rights can be an originalist.  For the sake of this post, I’m going to say that I’m one of these people.

The words privacy, abortion, and homosexuality are nowhere in the United States Constitution.  However, the Supreme Court in 1965 interpreted a “right to privacy” into its text.  The Court concluded in Griswold v. Connecticut that “the First Amendment has a penumbra where privacy is protected from governmental intrusion.”  Eight years later, the Supreme Court held in Roe v. Wade that state laws that completely outlawed abortion violated this newly created “right to privacy.”  This effectively guaranteed all women a limited “right to choose” and made the polarizing issue of abortion a matter of constitutional law.  Before this case, states were free to choose for themselves whether and to what degree abortion should be permitted.

In 2003, the Supreme Court held in Lawrence v. Texas that laws banning homosexual sodomy were unconstitutional.  While the Court stopped short of articulating a fundamental right to engage in homosexual sodomy, it nonetheless concluded that such laws violated principles of substantive due process under the Fourteenth Amendment.

Originalists, such as Justice Scalia, believe these two cases were wrongly decided.  In his dissenting opinion in Lawrence, Justice Scalia had no trouble concluding that laws banning homosexual sodomy were constitutionally permissible because the 13 original states all had such laws in place at the time the Constitution was ratified.  Essentially, laws such as these had always been on the books.  This, along with the fact that the constitution’s text was silent on the issue, led Justice Scalia to conclude not that gays and lesbians must live under such laws, but rather that change must be sought through the democratic process and not the Supreme Court.  The thrust of his argument is best captured by the following paragraph:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” . . . and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.

Justice Scalia’s main point is that when the Constitution is silent on an issue – that is, when the original interpretation of the Constitution is silent on an issue – the democratic process is the vehicle through which change regarding that issue should occur.  Now, is this in conflict with my pro-choice, pro-gay marriage beliefs?  Not one bit.  Let’s assume for the moment that Roe and Lawrence were never decided.  I wouldn’t support any state assemblymen who stood for either homosexual sodomy laws or outright abortion bans.  I would side with any campaign to have such laws wiped away in my state.  I would even support bonafide constitutional amendments that protected a woman’s basic right to choose and guaranteed gay marriage.  But I would not support challenging any such laws on manipulative interpretations of our highest law.

Originalism can coexist with progressive values.  The point of originalism is not to cling to old outdated views, but to cling to the original meaning of the constitution and allow the democratic process to steer the wheel of change.