Evaluation of Scalia’s Dissent on Lawrence V.Texas

Amanda Black

Exam Essays

Fall Quarter

12/5/2007

Scalia explains his dissenting opinion to the overturning of Lawrence v. Texas by comparing the case to Roe v. Wade in three areas. He looks at stare decisis, fundamental rights, and legal moralism.

There are three things that need to be proven before the court can overrule a decision in regards to stare decisis. 1) Its foundations have been eroded by subsequent decisions; 2) it has been subject to substantial and continuing criticism; 3) it has not induced individual or social reliance that counsels against overturning it. The court ruled that all of these requirements have been met in Bowers; therefore they overturned Lawrence v. Texas.

The court now claims that Planned Parenthood v. Casey “casts some doubt” on the ruling of Bowers, but Scalia doesn’t believe that is strong enough to meet the first requirement. There are other cases, such as Roe v. Wade, that truly have been eroded. It has been eroded by Planned Parenthood v. Casey, both of which have been eroded by Washington v. Glucksberg. Therefore, according to Scalia, if the courts say that Casey eroded Bowers, they will not be able to argue against Roe also being eroded.

The weakest part of his argument is his second point. He denies that there has been “disapproval of it’s reasoning in all aspects.” The court names two books that argue against Bowers’ ruling. Scalia downplays the significance of the books, I assume because there are only two, but I think that they are supported by many Americans who feel the same way. I believe the court when they said that there was “substantial and continuing criticism,” because I don’t think the majority of people in our society would agree with restrictions on such a personal choice. Whose opinion is important enough and how many books need to be published in order to decide if there is enough criticism? Was the court referring to society’s attitude as a whole? This penumbra is one on which I cannot seem to shed light based off of Scalia’s dissent. More importantly, however, he compares Bowers to Roe, again, by pointing out that Roe also had two published commentaries disagreeing with its decision. Therefore, according to Scalia, if the court decides that Bowers has enough criticism, so does Roe.

Scalia points out many cases that directly refer to Bowers as the precedent on which they based their decision. He says, “state laws against bigamy, same-sex marriage, adult incest, prostitution, masterbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.” Without Bowers set as a precedent, many laws lose their foundation. If Roe would be overturned, however, people would not lose their right to abortion; it would just give the states a choice to legalize it or not, according to Scalia. If a woman wanted an abortion, she could go to a nearby state if her state did not offer it. He makes this comparison, because if the court will overturn Bowers, a case Scalia sees as having significant societal reliance, then they should overturn Roe. It seems that Scalia is correct when he says that many of our moralistic laws will be called into question with the overturning of Bowers, but I do not see where that is as big of a problem as he says. I see that the courts would be very busy, but I think many of our laws governing morals are unjust. There are reasons why things like bestiality and adult incest should be illegal that are not simply because of morals. Bestiality is abuse to animals, which is against another law, and adult incest results in problems with the babies. I do not feel that the government has a right to prohibit activities for purely moral reasons, as Scalia seems to believe. I do agree, though, that Bowers has societal reliance because of all the cases he cited that directly refer to the case as the basis of their decision. I wonder, though, if Bowers is, in fact, the only case that allows laws based on state morals.

Scalia says that we are in a “culture war” between the homosexual activists and those who wish to criminalize homosexual behavior. The government says laws like Bowers discriminate against homosexuals and should not be in effect, therefore, according to Scalia, they are taking sides in this “culture war.” The court tells Americans that it is wrong to discriminate, but most states uphold laws that “mandate” and uphold such behavior (discharging persons in the military who engage in homosexual activity and Boy Scouts of America v. Dale.) Scalia says