The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Scalia's "Prophecy" in Lawrence And The Joint Dissent in Dobbs
That awkward moment when Justice Breyer joins an opinion that criticizes his join in Lawrence.
Lawrence v. Texas was decided in 2003. Only two members remain from that Court--Justices Thomas and Breyer. Well, at least Breyer is on the Court for a few more days. Justice Kennedy wrote the majority opinion in Lawrence. At the end of the decision, Justice Kennedy assured everyone that striking down the ban on sodomy would not lead to striking down traditional marriage laws.
It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
In dissent, Justice Scalia called bullshit.
At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--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.
We all knew the logical end-point of Lawrence. Really, that train started with Romer. Justice Kennedy's assurance was not worth the paper it was printed on. And who joined Lawrence? Justice Breyer.
Fast-forward a decade to Windsor. Once again, Justice Kennedy assured everyone that striking down DOMA would not put in jeopardy traditional marriage laws. The penultimate sentence of the opinion reads:
This opinion and its holding are confined to those lawful marriages.
Once again, Justice Scalia called bullshit. Don't believe it.
The penultimate sentence of the majority's opinion is a naked declaration that "[t]his opinion and its holding are confined" to those couples "joined in same-sex marriages made lawful by the State." Ante, at 26, 25. I have heard such "bald, unreasoned disclaimer[s]" before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Id., at 578. Now we are told that DOMA is invalid because it "demeans the couple, whose moral and sexual choices the Constitution protects," ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it. I promise you this: The only thing that will "confine" the Court's holding is its sense of what it can get away with.
And who joined Windsor? Justice Breyer, as well as newbies Justice Sotomayor and Kagan. Of course, two years later, Obergefell v. Hodges declared unconstitutional traditional marriage laws that predate the Age of Antiquity (the Age of Antiquity!). Why not? They had the votes and could get away with it.
Now, fast-forward to Dobbs. Here, the dissenters argued that Justice Alito and his ilk cannot be trusted on Lawrence and Obergefell. Their repeated promises that those precedents are safe are illusory. And how do we know the conservatives can't be trusted? Part I of the joint dissent--which I think was written by Justice Kagan--highlights Justice Scalia's Lawrence dissent:
Nor does it even help just to take the majority at its word. Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout's honor. Still, the future significance of today's opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to- explain lines. Rights can expand in that way. Dissenting in Lawrence, Justice Scalia explained why he took no comfort in the Court's statement that a decision recognizing the right to same-sex intimacy did "not involve" same-sex marriage. That could be true, he wrote, "only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court." Score one for the dissent, as a matter of prophecy. And logic and principle are not one-way ratchets. Rights can contract in the same way and for the same reason—because whatever today's majority might say, one thing really does lead to another. We fervently hope that does not happen because of today's decision. We hope that we will not join Justice Scalia in the book of prophets. But we cannot understand how anyone can be confident that today's opinion will be the last of its kind. . . . Even before we get to stare decisis, we dissent.
We should all learn from the prophecy of St. Nino. (This past week revealed at least three judicial miracles for legal canonization--overruling Roe in Dobbs, overruling Lemon in Kennedy, and expanding 2nd Amendment in Bruen!) But there is a special awkwardness for Justice Breyer. He joined the Lawrence dissent which promised, Scout's honor, that marriage laws were not at issue. And there is similar awkwardness for Justices Sotomayor and Kagan, who pinky-sweared that Windsor would not lead to the nullification of marriage laws. None of us believed them. Not for a second.
But I do believe Justice Alito, et al. The outrage about Griswold and Lawrence are mostly messaging. The joint dissent had virtually nothing to say about Roe and Casey being correct decisions. Rather, they had to spend nearly eighty pages talking about related decisions that face no realistic prospect of being overruled. There is no march on Washington to ban birth control. Indeed, even as Griswold was being decided, the Connecticut legislature was in the process of repealing the law. A step that Justice Douglas made unnecessary. And with regard to Lawrence, the Harris County District Attorney ignored everyone's advice to prosecute the case. There was simply no interest in Texas, or anywhere else, to prosecute someone for engaging in a consensual sex act. Finally, in the wake of Obergefell, societal acceptance of gay marriage has steadily increased. Even most social conservatives have given up on the issue. Take a look at who is the Chairman of the National Organization for Marriage!
There were barely five votes to overrule Roe. I don't think there is more than one vote to even grant cert to reconsider these other cases. Let's move on.
