The Sexual Orientation Cases
| Author | Ian Loveland |
| Position | Professor of Public Law, School of Law, City, University of London |
| Pages | 59-83 |
The Sexual OrienTaTiOn CaSeS
Ian Loveland*
Department of Law, City, University of London
ABSTRACT
This paper assesses Scalia’s contribution to a series of cases, spanning much of his thir-
ty years tenure on the court, which addressed issues relating to sexual orientation dis-
crimination. The argument put forward is that these cases severely undermine any claim
that Scalia might make to having been a distinguished judge in an intellectual or juridi-
cal sense. The pervasive theme of Scalia’s opinions in these matters is that of a constant
failure to respect traditional tenets of legal reasoning and a compulsive inclination to
engage in abusive castigation both of the litigants challenging the discriminatory laws
and his judicial colleagues who did not agree with his viewpoint.
CONTENTS
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0005
© 2017 Ian Loveland, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
i. inTrOduCTiOn .................................................................................................60
A. Bowers v. Hardwick (1986) ..................................................................61
B. Hurley v. Irish American Gay Lesbian and Bisexual Group of Boston Inc.
(1995) ................................................................................................... 64
C. Romer v. Evans (1996) .........................................................................66
D. Boy Scouts of America v. Dale (2000) ................................................. 70
E. Lawrence v. Texas (2003) ...................................................................... 71
F. United States v. Windsor (2013) ............................................................ 75
G. Obergefell v. Hodges (2015) .................................................................78
ii. COnCluSiOn .................................................................................................. 82
* Professor of Public Law, School of Law, City, University of London
6 Br. J. Am. Leg. Studies (2017)
i. inTrOduCTiOn
When Antonin Scalia was appointed to the Supreme Court in 1986, the notion that
Congress, the federal government or the States were constitutionally prohibited
from imposing all sorts of discriminatory laws, policies and practices on non-
heterosexual people solely because of those people’s sexual orientation would
have struck most legally literate observers as fanciful if not absurd.1 There was by
that time a groundswell of academic literature pressing such arguments through an
extension of the privacy jurisprudence which had emerged in the 1960s to invalidate
State proscription of contraception and been built on in Roe v. Wade and subsequent
abortion judgments,2 and as well growing political pressures within some States to
recognize sexual orientation as a legitimate classication for equality law purposes.
But the fact that little more than thirty years later we seem to be arriving at a
position in which a majority of the federal judiciary is reading the constitution in
just such a prohibitory way offers a remarkable illustration of the rapidity with
which supposedly fundamental moral principles within United States society can
evolve and change.
It is hardly a revelation to note that Justice Scalia saw few constitutional
barriers to such discriminatory treatment, whether in federal or state law. Scalia sat
in a cluster of notable cases involving sexual orientation discrimination while he
served on the Supreme Court, running from Hurley v. Irish American Gay Lesbian
and Bisexual Group of Boston, Inc.3 in 1995 through to Obergefell v. Hodges4 in
2015. This paper assesses the judgments offered or joined by Justice Scalia in six
of those cases.5 My primary interest is to use this issue as a vehicle to explore the
hypothesis that Scalia, whatever his personal political ideologies, was nonetheless a
distinguished judge – even perhaps a great one – in a purely juridic and intellectual
sense.6 In short terms, the argument presented here is that any such portrayal is quite
1 Most notably in 1976, the Supreme Court had summarily upheld (425 U.S. 901 (1976))
a 2-1 Court of Appeals judgment upholding Virginia’s criminalization of male to male
sexual relations; Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (1975). On the
state of the law on this issue up to the late 1970s see especially Rhonda Rivera, Our
Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States,
30 haSTingS l.J. 799 (1978-1979).
2 See e.g. David A.J. Richards, Homosexuality and the Constitutional Right to Privacy,
n.Y. u. rev. l. & SOC. Change 311 (1979); Sexual Autonomy and the Constitutional
Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30
haSTingS l.J. 957 (1978-1979).
3 515 U.S. 557 (1995). The court was Rehnquist, C.J. (Nixon/Reagan 1972/1986), Stevens (Ford
1975), O’Connor (Reagan 1981), Scalia (Reagan 1986), Kennedy (Reagan 1988), Souter
(Bush 1990), Thomas (Bush 1991), Ginsburg (Clinton 1993, and Breyer (Clinton 1994).
4 576 (U.S.), 135 S. Ct. 2584 (2015).
5 The list is not exhaustive. For a much more thorough analysis of the rst half of Scalia’s
tenure on the Court see JOYCe MurdOCh & deb PriCe, COurTing JuSTiCe (2002).
6 Such comments came predictably, from right-leaning blogs and magazines; see e.g. Mark Jo-
seph Stern, Antonin Scalia Will Be Remembered as One of the Greats, http://www.slate.com/
articles/news_and_politics/jurisprudence/2016/02/antonin_scalia_was_a_truly_great_su-
preme_court_justice.html, SlaTe, (Feb.13 2016 8.44 PM); Jeffrey Rosen, What Made Scalia
Great (2016) The aTlanTiC (Feb. 2016) http://www.theatlantic.com/politics/archive/2016/02/
what-made-antonin-scalia-great/462837/. They also came from legal academics who one
60
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