Kennedy made another crucial move in Lawrence, concluding that an individual’s interest in dignity trumps the majority’s interest in preserving traditional moral values. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Kennedy held.
“This effectively decrees the end of all morals legislation,” Justice Scalia fulminated, and he predicted the demise of “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” In fact, Scalia’s prediction may prove to be correct. His question about why the state’s police power to protect public morals—taken for granted from the founding era until the Lawrence case—was suddenly a violation of the Constitution remains valid and unanswered. In Lawrence, Scalia also predicted that the new dignitary right would lead inevitably to the recognition of same-sex marriage, despite Kennedy’s protestations to the contrary (“Do not believe it,” Scalia wrote). As Scalia understood, without moral disapproval as a permissible state interest, the other interests the state offered to ban same-sex unions were hard to credit. Here is Scalia’s prescient observation:
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,” Scalia concluded, “since the sterile and the elderly are allowed to marry.”
In other words, despite Ohio’s attempt to resurrect the encouragement of procreation as a justification for same-sex marriage bans in the recent arguments—a justification dismantled by Justices Kagan and Sotomayor—Scalia beat them to the punch by more than a decade.
In addition to sincere moral disapproval of homosexuality by some religious people, there is one other main reason that voters have passed same-sex marriage bans in the past few years: a desire to preserve tradition. But the Supreme Court ruled that reason out of bounds in United States v. Virginia in 1996, when it held that a desire to preserve tradition for its own sake was a “notably circular argument” that could not survive constitutional scrutiny.
Since these two arguments—moral disapproval or preserving tradition—are the real reasons most voters have for supporting gay marriage bans, opponents of gay marriage were forced to offer implausible reasons—such as promoting “responsible procreation” by straight people—which, as Justice Kagan’s questioning suggested, are hard to credit because they are essentially made up for the purposes of litigation.