One of the more memorable lines in Justice Scalia’s Lawrence v. Texas dissent (not in a good way) was his reference to the so-called “homosexual agenda.”
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
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 morerequire 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,” ante, at 18; 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.
This colloquy from today’s arguments in Windsor between CJ Roberts and Kaplan reminded me of Scalia’s dissent, though it was a bit more tame. Roberts substitutes the “homosexual agenda” for the same-sex marriage “lobby.”
CHIEF JUSTICE ROBERTS: I suppose the sea change has a lot to do with the political force and effectiveness of people representing, supporting your side of the case?
MS. KAPLAN: I disagree with that, Mr. Chief Justice, I think the sea change has to do, just as discussed was Bowers and Lawrence, was an understanding that there is no difference — there was fundamental difference that could justify this kind of categorical discrimination between gay couples and straight couples.
CHIEF JUSTICE ROBERTS: You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different States is politically powerful, do you?
MS. KAPLAN: With respect to that category, 1 that categorization of the term for purposes of 2 heightened scrutiny, I would, Your Honor. I don’t -
CHIEF JUSTICE ROBERTS: Really?
MS. KAPLAN: Yes.
CHIEF JUSTICE ROBERTS: As far as I can tell, political figures are falling over themselves to 7 endorse your side of the case.
Even today, as arguments were proceeding, NC Senator Hagan endorsed SSM.
The answer of course is how the movement evolved from 1996 till today. To Roberts, it comes from the effectiveness of the lobby.
CHIEF JUSTICE ROBERTS: Well, but you just a sea change in people’s understandings and 1996, when DOMA was enacted, and I’m just rying to see where that comes from, if not from the 2 political effectiveness of — of groups on your side of 3 the case. 4
MS. KAPLAN: To flip the language of the 5 House Report, Mr. Chief Justice, I think it comes from a 6 moral understanding today that gay people are no 7 different, and that gay married couples’ relationships 8 are not significantly different from the relationships 9 of straight married people. I don’t think - 10
CHIEF JUSTICE ROBERTS: I understand that. 11 I am just trying to see how — where that that moral 12 understanding came from, if not the political 13 effectiveness of a particular group. 14
MS. KAPLAN: I — I think it came — is, 15 again is very similar to the, what you saw between 16 Bowers and Lawrence. I think it came to a societal 17 understanding. 18 I don’t believe that societal understanding 19 came strictly through political power; and I don’t think 20 that gay people today have political power as that - 21 this Court has used that term with — in connection with 22 the heightened scrutiny analysis.
Update: The Times adds:
Still, about 40 states do not permit same-sex marriage, and most of them have constitutional bans approved by voters in recent years. Nine Democratic senators and all but one Republican senators oppose the practice. It was only last fall that the first state referendums approving same-sex marriage were passed by voters. As Justice Samuel A. Alito Jr. pointed out, nowhere in the world was same-sex marriage legal until the Netherlands passed a law in 2000.
For the court, the question of political power is important, as it decides what standard to use in deciding whether the laws before it are unconstitutionally discriminatory. Gay rights advocates are seeking a “heightened scrutiny” standard similar to that applied to gender discrimination, meaning that a law must be substantially related to an important government interest.
The test of such scrutiny includes the history of discrimination against a group and its relative political power. Despite a history of discrimination, gay men and lesbians now find their political power on the rise.
“The reason there has been a sea change,” said Paul D. Clement, a former solicitor general who argued on behalf of the Defense of Marriage Act, “is a combination of political power, as defined by this court’s cases as getting the attention of lawmakers; certainly they have that. But it’s also persuasion. That’s what the democratic process requires. You have to persuade somebody you’re right.”
For Mr. Clement and his adversaries, the question remained whether they had persuaded the justices to follow that process or get out of the way.