Anti-Sodomy Defense Mirrors Slavery Defense

Those who disagree with the Supreme Court's decision to strike down anti-sodomy laws are sincere in their beliefs - and indeed, it is entirely possible that their arguments are valid. But there is one important matter that they must consider: their arguments are suspiciously similar to those 1857 case of Dred Scott which justified slavery. The similarities don't necessarily invalidate the anti-sodomy position; however, Dred Scott wasn't just a bad conclusion, it was also a bad argument.

Thus, those who disagree with the ruling in Lawrence v. Texas are obligated, even for their own sakes, to explain how their reasoning is superior now to when it was used in Dred Scott. Stephen Henderson writes for Knight Ridder:

The issues addressed in Dred Scott and Lawrence are far from identical. And on some legal issues, the Dred Scott ruling takes the opposite approach from Scalia's dissent. But the similarities between the two boil down to the justices' views of constitutional liberties. Confronted with efforts to extend freedoms to Americans who were historically excluded, both relied on literal interpretations of the Constitution to support legal inequities.

"Scalia's dissent is very reminiscent of Dred Scott, in that it embraces Taney's cramped notion of history and the law," said Paul Finkelman, a University of Tulsa law professor whose book on Dred Scott is one of the leading studies on the case and its significance. "Scalia, like Taney, has a view that the only liberty traditions are the ones we've had since the Constitution was written. Really, that ignores the very language of the Constitution, which says you can't deny equal protection of the law to anyone."

The article cites a number of examples where people were denied things in the past which are no-brainers today. In the 1873 case of Bradwell v. Illinois, a woman argued that the 14th Amendments guarantee of equal protection meant that she should be admitted to the bar in Illinois - but the Supreme Court rejected her argument, saying that women had no legal existence beyond their husbands for the founders - and besides, it's women's natural destiny to be mothers and wives. It was once common for defendants to be put on trial without having lawyers - that was the tradition. Today, no one would accept such a situation as "fair trial."

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