Incest, Bestiality, And Sodomy: The Supreme Court Decision Of Lawrence v. Texas (2003), And Why Justice Scalia's Dissent Is Still Right

The more one researches the issue, the more the facts concede Supreme Court Justice Antonin Scalia’s point in his 2003 dissent that the logical extension of Lawrence v. Texas (where the Supreme Court overturned Texas's sodomy law) should be the elimination of laws against adultery, incest, polygamy, bestiality, and more once morality alone can no longer serve as the basis for legislation. One of the first and primary objections to Scalia's argument is to claim that comparing the issues in Lawrence to incest or bestiality goes too far. This is not the case.

As one example, Georgetown University law professor Milton Regan actually writes in his 1993 article Reason, Tradition, And Family Law: A Comment On Social Constructionism that “an incest prohibition…is a direct interference with at least the right to marry, and perhaps with a less well-defined right of...sexual privacy.” This logic should directly lead to such laws being overturned as per Lawrence if the act of incest is being described by some legal theorists in much the same way as the act of sodomy in terms of being within a right of sexual privacy or autonomy, and morality now no longer being a sufficient basis for prohibiting it as per the Supreme Court's ruling in Lawrence.

Moving on to bestiality, one finds that bestiality in the law was in fact another form of the once prohibited act of sodomy. American Jurisprudence, a well-known encyclopedia of United States law (second edition is cited as Am. Jur. 2d), states that “persons who engage in acts of sex with animals are generally subject to prosecution for the offense of sodomy. The Uniform Code of Military Justice likewise defines sodomy, in part, as including any "unnatural carnal copulation by a person with an animal.” So not only was Scalia correct that sodomy laws being overturned means bestiality laws should be overturned, but bestiality laws were legally indistinguishable from sodomy laws, at least insofar as bestiality was merely a subgroup of sodomy. This was so true to the point that a legislative overview tells us that Lawrence actually resulted in bestiality laws being wiped from the books. The 2007 Legislative Overview states that “[t]he Lawrence ruling had an indirect and unanticipated impact on animals because many states still had catchall, ‘crimes against nature’ laws in effect that outlawed sodomy as well as bestiality. Although state legislatures created new laws against sexual assault, they did not always create new laws prohibiting bestiality.” I suppose the only real difference is that to Scalia, this should have been an anticipated direct effect of the Lawrence ruling.

The more one looks into it the more the evidence and arguments seem to pile up for Scalia’s corner. Therefore it is worth looking to a 2006 Brigham Young University Law Review article by Mitchell Park entitled Defining One's Own Concept of Existence and the Meaning of the Universe: The Presumption of Liberty in Lawrence v. Texas which in large part attempts to criticize and rebut Scalia’s supposed misunderstandings of the Supreme Court decision in Lawrence. I think his attempts were feeble and weak, but they are the best efforts I have yet to see in attempting to directly respond to Scalia's dissenting opinion. I will in Scalia’s defense therefore address several points made by Park.

First, Park cites “the point made by [Harvard Law] Professor Tribe that it is somewhat disingenuous to compare the insular and miniscule part of the population that wishes to voluntarily engage in acts of bigamy, bestiality, or incest with the significant population of homosexual Americans who define their very identity as gay or lesbian persons.” This is laughable. No wonder it it comes from a Harvard professor. Since when do Constitutional protections have less significance when an insular minority is at issue and take greater effect when a “significant population” is involved? In fact, isn’t being more of an insular and discrete part of the population a reason for greater protection? I thought a minority right against the tyranny of a majority was part of the whole idea behind a Bill of Rights and the Civil War Amendments. Would Tribe apply this to almost any other Constitutional provision? Do Protestants have more of right than Catholics who have more of a right than Jews who have more of a right than Muslims to free exercise of religion by virtue of the numbers of adherents within the United States? And the issue here is not numbers, but the principle being applied. The amount of people a law may happen to target does not in any way change the underlying principle that would lead some laws to be overturned, and others to be upheld.

Park further argues that “by focusing on the physical act of homosexual sodomy in his analysis,” Scalia misses “the broader point…that it is the liberty interest of the individual to define his own concept of existence…that is truly at stake.” He did not miss that famous passage from the 1992 abortion case of Planned Parenthood v. Casey being regurgitated in Lawrence at all. The Court in Planned Parenthood stated, and this line was quoted in the Lawrence decision, that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Scalia responded to this directly in his Lawrence dissent saying, “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.” It appears Park missed the broader point of Scalia’s dissent.

Park also argues that “nowhere in its opinion [in Lawrence] does the majority signal a willingness to dispense with morals-based legislation altogether.” But that is exactly what it does, and the very same law review article concedes as much. Park writes that “[i]f anything, the Court follows a longstanding practice of not relying exclusively on a morals-based rationale for upholding lawmaking.” The 1986 decision of Bowers v. Hardwick stands as evidence of Supreme Court disagreement about that being some “longstanding practice.” Park himself even says within the same article that “[t]raditional morality, at the end of the day, is no justification for coercion on the part of the state.” He spends much ink on Lawrence not demanding that all laws relating to sexuality be dispensed, but just demanding a harm now need be cited to support any such law. This in effect means citing morality cannot alone suffice, and Lawrence indeed then signaled dispensing with “morals-based legislation” (emphasis added). Only if legislation is based on harm or some other principle can it be upheld. This was not the holding of Bowers, the controlling Supreme Court decision before Lawrence, and had the State of Texas known the Supreme Court was going to change the rules of the legal game after a mere 17 years it would have simply made a “harm principle” argument. Amicus briefs were entered on both sides in that case as it relates to the possible health effects on the individuals and society of the sodomy at issue. In oral arguments, Texas’s counsel specifically said he was not relying on the amicus entered in Texas’s favor on the health issue, because morality alone in accord with Bowers would be enough. Had Texas known differently, they surely could have adopted the amicus brief on health effects as part of their argument.

Park’s main argument is made when he writes that “[a]s for laws against bigamy, bestiality, incest, and prostitution, it should be noted that, unlike prohibitions against sodomy, these laws are in most cases designed to prohibit actual harms, as opposed to mere ‘moral’ harm.” For example, he says “[t]here is a substantial public health concern that pervades the taboo against bestiality.” Often in regards to incest one also hears the argument that laws and taboos against it are designed to prevent genetic abnormalities. Besides for the point just made about how health concerns can always be brought to the forefront if the lawyers know they have to, even if only artificially to protect a law’s existence, I was unaware that bestiality or incest is chiefly or even principally illegal because of health concerns. If that were the case, it should be completely legal (not to mention considered morally non-problematic) so long as no health issue is implicated. Does that sort of rationale really exemplify the real reasons behind and the extent of the reach of bestiality or incest laws? Would incest be morally and legally acceptable so long as one of the relatives copulating could show he or she was infertile? Would bestiality be seen as a Constitutional right so long as the animal is happy and healthy while the human being performs sex acts with it? I don’t think that’s the case at all, and to suggest as much is ludicrous. The law casts a much wider net than Park would have you believe by his pretenses and forced excuses once he has dismissed traditional sexual morality from the picture.

But even besides the fact that these pure harm-based justifications do not represent the scope of the sexual prohibitions themselves as seen in law, would any of these justifications be legitimate outside the scope of bestiality or incest? For example, if preventing genetic deformities is some noble goal of banning incest, could the State force anyone who is to be married to be tested for the increased possibility of producing offspring that have genetic abnormalities and ban those that are more inclined toward this from wedding? Could all premarital sex be outlawed on the basis that it leads to the harm that is the spread of sexually transmitted diseases? I doubt Park is suggesting this, and there is no possible reason outside of traditional morality to believe that incest or bestiality should legally be any different.

Park even states that “laws against adultery” could be sustained under Lawrence because they “clearly fall under the purview of the harm principle because the philandering spouse obviously harms his or her counterpart.” Clearly and obviously? When an author says something is both clear and obvious in the same sentence without explaining the clear and obvious, it’s actually worth thinking more about. It is only clear and obvious if one assumes there is something important about marriage and fidelity within the institution, or even something important about sexual exclusivity within all intimate relationships, in the first place. Distinguishing harm from notions of morality is not always so obvious and clear.

The overarching sexual libertarian argument about the meaning of the Fourteenth Amendment’s provisions put forward by Park is an absurdity constantly being couched in terms of “original meaning” throughout his article. He may put forward the libertarian Constitutional argument that the Fourteenth Amendment creates a bottomless well from which judges can enforce the John Mills harm principle and strike down any law a court feels does not meet that principle, but do no pretend the original meaning demands such results or the result in Lawrence! Justice Scalia persuasively pointed out in his dissent in regards to “original meaning,” that “sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today [as Lawrence is being handed down], 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.” The idea that the original meaning in 1868 of the Due Process Clause or the Privileges or Immunities Clause was to anyone that sodomy or like laws must be overturned is nonsensical and simply not historical. It is an utter abuse of the “original meaning.” Tweet