MEDITATION NUMBER FOUR
On Equal Protection

Basically, Scalia rejects Justice O’Connor’s widely held view that homosexuals are a distinct category of citizens. He compares gay sexual behavior to the behavior of nudists—nudists, as a class of people, are also discriminated against, in their case by public decency laws; it is Constitutionally permissible to discriminate against some groups of people.

However, Scalia displays either absolute ignorance of or absolute contempt for contemporary psychological views on homosexuality: sexual orientation is not simply a choice of lifestyle; denial of one’s own sexual orientation often results in severe emotional and psychological consequences. Nudism is clearly a choice made by people who, if they wanted to do so, could easily don clothes and fully interact with and participate in mainstream society. For gays, this is not so easy—sexual orientation is intertwined deeply with human identity; passing as heterosexual, being accepted by straight society is not as simple as putting on a suit (or black judicial robes, for that matter).

This nudist thing is just an awful comparison in any case. A better comparison is to imagine nudity in the home being outlawed. Of course, that’s ridiculous, just as outlawing in-home sodomy is ridiculous. But then Scalia claims to not understand the concept of “acting in private.” Simply put, Scalia thinks of homosexuality as something other than what it actually is—for him, gayness is simply something some people like to do, rather than an integral part of some people’s identities. He is at odds, again, with reality.

However, I must say that I believe he is quite right about the ramifications here for gay marriage: if gays are now Constitutionally recognized as a special group worthy of equal protection under the law, then they MUST be allowed to marry. O’Connor’s statement that the decision is not to be taken as a legalization of gay marriage contradicts her own reasoning. As Scalia puts it later in his conclusion:

…the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." (emphasis added). 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; 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,"; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? 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.

Way to go, Sandra!