Would Gorsuch Support Scalia’s Position on Sodomy Laws? New at Reason


Neil GorsuchBill Clark/CQ Roll Call/NewscomIn nominating Gorsuch, President Donald Trump wanted to duplicate the late Justice Antonin Scalia’s “image and genius.” Gorsuch described Scalia, whose death created the vacancy he was chosen to fill, as a “lion of the law.” In a speech last year, he embraced him as a model. Both Republicans and Democrats agree that the two are as different as Mary-Kate and Ashley Olsen.

That brings us to the matter of sodomy. In 1986, shortly before Scalia joined the Supreme Court, the justices upheld a Georgia law making it a crime to seek gratification in oral or anal sex, gay or straight. The case arose after police arrested two men caught lustily violating that law in a private home.

“The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy,” said the court. Had he been a justice at the time, Scalia would have voted with the majority.

We know because he bitterly objected in 2003 when the court changed its mind. Striking down a Texas ban on homosexual sodomy, Justice Anthony Kennedy wrote that the two men challenging the law “were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.” Steve Chapman wonders how closely Gorsuch’s positions match Scalia’s.



Reason Staff

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