"SCALIA'S MORALITY OF PREJUDICE: Antonin Scalia's dissent in Lawrence vs Texas is, as usual, interesting and not quite as chock-full of animus toward homosexual dignity as in the past. It comes down to two arguments: that an assertion of "morality" is justification enough for any law anywhere, regardless of its rationality; and that a law that covers only same-sex sodomy is not discriminatory toward homosexuals. Both ideas strike me as wrong. On the first count, surely the government does need to provide some kind of reasonable justification for a law expressing "morality," which doesn't just rely on what people have always believed or always assumed. One reason that this law was struck down is because its supporters couldn't come up with an argument that justified persecution of private sexual behavior, apart from the notion that stigmatizing gay sex was somehow good for families. Allowing sodomy for 97 percent of the population, while barring it for 3 percent cannot possibly be defended as a law designed to prevent or deter the immorality of sodomy. It was a law entirely constructed to stigmatize gay people. It had no other conceivable purpose. And when "morality" is simply a rubric under which to persecute a minority, then we don't really have the imposition of morality at all. We have the imposition of a prejudice. At least the Catholic Church makes no distinction between heterosexual sodomy and homosexual sodomy. In fact, I know of no religious or moral tradition which makes the distinction that Texas law made until today. Scalia is not upholding any morality. He's upholding prejudice. As to his notion that the law doesn't single out gays because two straight guys getting it on would be criminalized as well, that's like saying that a law banning Jewish religious services is not anti-Jewish since goyim could not conduct such services either. It's the kind of sophistry you need to deny the obvious, hostile intent of the Texas law." --- Source.
In reading his dissent he said that the "majority concensus" had always been accepted as a basis for legislating sexual behavior. I would argue that it's really that concensus that is the basis of all our laws and notions of rights.
and that a law that covers only same-sex sodomy is not discriminatory toward homosexuals.
Here I would argue 1) So what if it's discriminatory against homosexuals? It is that behavior that the majority finds immoral. Same thing with pedophilia or incest or what have you. Homosexuals have never been a protected class and should not be. And 2) homosexual sodomy is different from heterosexual sodomy. In fact different states have defined "sodomy" differently. The fact is that the majority finds homosexual acts of sodomy more offensive more against nature, more immoral than they find heterosexual sodomy.
It was a law entirely constructed to stigmatize gay people. It had no other conceivable purpose.
I dissagree. The law was designed to stigmatize homosexual behavior. As such the law sought to prevent people turning into homosexuals in the first place. It may well have been designed as well to stigmatize homosexuals and drive them out of the community. It's no different treatment than we would give pedophiles.
"surely the government does need to provide some kind of reasonable justification for a law expressing "morality," which doesn't just rely on what people have always believed or always assumed"
No it doesn't. There is no other basis for any of our perceived rights and notions of fairness other than the majority consensus. Unless you are willing to recognize a work like the Bible as an authority. In ditching the majority consensus, the court imposed a minority viewpoint of morality with less justification than that with which the legislature had enacted.