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Unpublished Paper
Fighting the Culture War as a Neutral Observer: A Profile of Justice Scalia’s Machinations in Lawrence v. Texas
ExpressO (2010)
  • George D Miller, Lewis University
The purpose of this comment is to identify and determine the function of those machinations in the culture war as well as to demonstrate their patent shortcomings. In Part I, it will examine how Justice Scalia plays the “lifestyle card,” a subtle but powerful sign of his allegiance to the far right social and political agenda. Because of the controversy of this charge, much evidence will be adduced to demonstrate that the contemporary use of the word “lifestyle” reinforces a negative connotation of a promiscuous lifestyle often associated with the myth of hyper-sexuality, suggesting gay people “recruit” vulnerable heterosexuals and widely practice pedophilia. Scalia’s use of the term reflects common usage by conservative politicians, religious leaders, commentators, and celebrities. In Part II, the three different lists of sexual offenses Scalia offered in his Lawrence dissent will be analyzed and contrasted with Justice Kennedy’s list of sexual offenses. While Judge Scalia lumped together all sexual offenses and argued that repealing sodomy laws entailed preventing drawing any distinctions between sexual offenses, Justice Kennedy distinguished consensual adult sodomy from rape, public exhibitions of sex, and prostitution. The key point examined is why rape does not make any of Scalia’s lists. Part III identifies the ways in which Justice Scalia played with originalism in order to ensure that homosexuals miss out on suspect or quasi-suspect class status. In Part IV, the appeal to ancient roots assertion as well as transnationalism are analyzed. Scalia contended that borrowing from “foreign” judicial decisions can only yield meaningless and dangerous dicta. Using the theory of comparative foreignness, abiding by laws of one’s own country and within one’s own heritage even when their rationale is no longer relevant or patently false also introduces meaningless and dangerous dicta.
  • sodomy laws,
  • originalism,
  • ancient roots,
  • new sexual morality
Publication Date
February 16, 2010
Citation Information
George D Miller. "Fighting the Culture War as a Neutral Observer: A Profile of Justice Scalia’s Machinations in Lawrence v. Texas" ExpressO (2010)
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