By Associate Justice Antonin Scalia, U.S. Supreme Court, Reprinted from World magazine
August 1996 – In striking down a Colorado state constitutional amendment barring special legal rights for homosexuals as a class, the Supreme Court has decisively taken sides in the culture war by denying Americans the use of one democratic weapon to fight against the erosion of biblical sexual ethics and social structure. Justice Antonin Scalia reflected the views of the increasingly lonely three-member minority when he assailed the ruling as "as act, not of judicial judgement, but of political will." Justice Scalia's dissent in last month's Romer v. Evans case is perhaps his most blistering indictment ever of the liberal wing of the court, describing aspects of the majority ruling with phrases such as "terminal silliness," "comical." "absurd," "preposterous," and "insulting."
The court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “bare…desire to harm” homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.
In holding that homosexuality cannot be singled out for disfavorable treatment, the court contradicts a decision, unchallenged here, pronounced only 10 years ago [Bowers v. Hardwick, a 1986 ruling upholding Georgia’s anti-sodomy law], and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This court has no business imposing upon all Americans the resolution favored by the elite class from which the members of this institution are selected, pronouncing that “animosity” toward homosexuality is evil.
I vigorously dissent.
The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the state or any municipality from making death-benefit payments to the “life partner” of a homosexual when it does not make such payments to the long-time roommate of a non-homosexual employee. Or again, it does not affect the requirement of the state’s general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the state nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored.
Despite all of its hand-wringing about the potential effect of Amendment 2 on general anti-discrimination laws, the court’s opinion ultimately does not dispute all this, but assumes it to be true. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.
The central thesis of the court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decision making than others. The world has never heard of such a principle, which is why the court’s opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle.
The court’s entire novel theory rests upon the proposition that there is something special – something that cannot be justified by normal “rational basis” analysis – in making a disadvantaged group (or a non-preferred group) resort to a higher decision making level. That proposition finds no support in law or logic.
I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment – for the prohibition of special protection for homosexuals. It is unsurprising that the court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the court’s opinion: In Bowers v. Hardwick, we held that the Constitution does not prohibit what virtually all states had done from the founding of the Republic until very recent years –making homosexual conduct a crime. That holding is unassailable, except by those who think that the Constitution changes to suit current fashions. If it is constitutionally permissible for a state to make homosexual conduct criminal, surely it is constitutionally permissible for a state to enact other laws merely disfavoring homosexual conduct.
Respondents (who, unlike the court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2’s application to individuals who do not engage in homosexual acts, but are merely of homosexual “orientation.” Some courts of appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference.
But assuming that, in Amendment 2, a person of homosexual “orientation” is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.
The foregoing suffices to establish what the court’s failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable.
The court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible –murder, for example, or polygamy, or cruelty to animals – and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus”at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.
The court’s portrayal of Coloradans as a society fallen victim to pointless, hate-filled “gay-bashing” is so false as to be comical. Colorado not only is one of the 25 states that have repealed their anti-sodomy laws, but was among the first to do so. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.
There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternate lifestyle.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and of course care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.
By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals’ quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities – Aspen, Boulder, and Denver – had enacted ordinances that listed “sexual orientation” as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.
That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly, to all the citizens of the state, the question: Should homosexuality be given special protection? They answered no. The court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before.
This is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group –whether drug addicts, or smokers, or gun owners, or motorcyclists – from changing the policy thus established in “each of [the] parts” of the state. What the court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists.
But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is “forever prohibited.” Polygamists, and those who have a polygamous “orientation,” have been “singled out” by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The court’s disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these states on a state-legislated, or perhaps even local-option, basis – unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.
Has the court concluded that the perceived social harm of polygamy is a “legitimate concern of government,” and the perceived social harm of homosexuality is not?
I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The court today, announcing that Amendment 2 “defies… conventional [constitutional] inquiry,” and “confounds [the] normal process of judicial review,” employs a constitutional theory heretofore unknown to frustrate Colorado’s reasonable effort to preserve traditional American moral values. The court’s stern disapproval of “animosity” towards homosexuality might be compared with what an earlier court said in Murphy v. Ramsey [an 1885 ruling], rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation:
“[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”
I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than “a bare…desire to harm a politically unpopular group,” is nothing short of insulting. (It is also nothing short of preposterous to call “politically unpopular” a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2.)
When the court takes sides in the culture wars, it tends to be with the knights rather than the villains – and more specifically with the Templars, reflecting the views and values of the lawyer class from which the court’s members are drawn.
How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member-schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals. This law-school view of what “prejudices” must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress,which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws and which took the pains to exclude them specifically from the Americans With Disabilities Act of 1990.
Today’s opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. 
