About Scalia: ‘He Wasn’t Wrong’
I made it back from Romania yesterday afternoon. It was a life-changing trip; I’ll tell you more about it later today. It was so intense, and so exhausting, that I fell into bed at five pm yesterday for a little nap, and didn’t wake up until 5:30 this morning. That tells me how much this trip took out of me … but the people I met and the things I saw made this one of the most important long weekends of my life. Like I said, more later.
This morning I see that Vogue magazine is hailing the end of monogamy (“Inside Love’s Sharing Economy”). Remember, social change generally starts with elites … like the kind of people who read Vogue. Excerpts:
Opening their relationship sparked a stream of existential questions for the Bhatias, according to Megan: “Whose life are we living? What do we want?” Entrenched systems were equally open to debate. “We are in a time of questioning institutional structures like health care, education, and, yes, monogamy,” she says, referencing the rise of a vocal, progressive political movement demanding sweeping structural change. The swelling impulse to challenge the status quo, from systemic racism and criminal justice to #MeToo’s reckoning on sexist abuse, had crept into her sex life and relationship style: “I think people are disillusioned with life right now and really starting to write their own rules,” Megan says.
So began the Bhatias’ winding path into consensual non-monogamy or “CNM,” the modern umbrella term for the practice of mutually and ethically agreeing to open an exclusive relationship to other sexual experiences, and in some cases, serious romantic partners. As “conscious uncoupling” was to divorce, consensual non-monogamy—sometimes called “ethical non-monogamy”—is to open relationships. In contrast to the free love of the ’60s or suburban key-party ethos of the ’70s, consensual non-monogamy in 2022 is a thoughtfully considered, typically therapized practice, complete with tidy acronym. CNM is rooted in open relationships that aspire to be “honest, moral, and trustworthy,” says Jessica Wood, Ph.D., a sexuality and relationships researcher at the Sex Information & Education Council of Canada (SIECCAN), who has studied CNM since 2018.
The Bhatias are not alone: In a national survey conducted by data analytics firm YouGov in 2020, only 56 percent cited complete monogamy as their ideal relationship style, a 5 percent drop from 2016. An estimated 23 percent of respondents said their relationships were already non-monogamous, echoing breakthrough 2017 research published in the Journal of Sex & Marital Therapy, which found that more than one in five single Americans in their study had tried consensual non-monogamy. “You could go to the grocery store, close your eyes, point at someone, and as long as there’s at least five people in that grocery store, one of them is probably engaged in non-monogamy,” says one of the study’s authors, Amy Moors, Ph.D., an assistant professor of psychology at Chapman University and research fellow at the Kinsey Institute at Indiana University. At a minimum, the CNM community is “as large as the LGBTQ population in the United States,” Kimberly Rhoten, a founding member of the Polyamory Legal Advocacy Coalition, tells me.
Nor is aspiring to monogamy any longer the societal default: When asked about their relationship ideal, from completely open to completely monogamous, the number of people who replied “I don’t know” more than doubled in the 2020 YouGov study, leaping from 5 percent in 2016 to 12 percent. “More people are starting to question,” says Zhana Vrangalova, Ph.D., an adjunct professor of human sexuality at New York University, who researches non-monogamy. “There are a couple of cultural shifts that are really making monogamy—complete, strict, lifelong monogamy—a very difficult thing to pull off.”
Megan considers herself a better parent now that she’s polyamorous, saying she’s a more loving person in general. She and Marty give their son and daughter an age-appropriate explanation of their unconventional relationship structure or “polycule” (CNM is only the beginning of a seemingly endless glossary of terms). “At one point, when we lived in New Zealand and Kyle lived with us for about six months, they knew I might be in Kyle’s bedroom or I might be in Daddy’s bedroom,” Megan said. “We talk about ‘Mommy loves Kyle and Daddy,’ and ‘Daddy loves Mommy and Daddy loves his partner’…and they don’t know it’s not normal yet.” She likens it to the kids’ simply accepting the Bhatias’ gay friends.
It took five more years, but in June 2020, the liberal city of Somerville, Massachusetts, just outside Boston, passed what was believed to be the country’s first municipal ordinance recognizing polyamorous relationships of three of more people, granting them the same legal rights as married, monogamous couples. The neighboring cities of Cambridge and Arlington followed suit in March and April 2021. Moors cites late Supreme Court Justice Antonin Scalia’s “slippery slope” argument that striking down anti-sodomy laws could lead to queer marriage and legal unions between multiple people. She laughs a little: “He wasn’t wrong.”
Let’s revisit Justice Scalia’s dissent in Lawrence v. Texas, the one referenced here. Excerpts:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196.2
What a massive disruption of the current social order, therefore, the overruling of Bowers entails.
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
To recap: in the 2003 decision overturning anti-sodomy laws, Justice Antonin Scalia warned that the Court’s ruling negated any basis in law for regulating consensual sexual behavior or relationships.
In 2022, the polyamorist chuckles, “He wasn’t wrong.”
I recall that several Trump nominees to the federal bench were roasted for their stated beliefs that (in effect) Justice Scalia wasn’t wrong. The Scalia codicil to the Law of Merited Impossibility: Justice Scalia is wrong, and when he is proven right, you bigots will deserve it.
Back in 2003, I supported the overturning of anti-sodomy laws on privacy grounds, but via legislation — NOT via the court solution. I was certain that Scalia was right. Now, of course, we see that he was. The law is a teacher. If the law does not privilege marriage as one man plus one woman, exclusively, why should society?
To be sure, I do believe that same-sex marriage became a possibility in the minds of many because of the way the heterosexual majority had come to think about what marriage is, in the wake of the Sexual Revolution. That is, if the straight majority had come to believe that marriage is nothing more than a civil contract made between two people, to ratify in law their emotional feelings for each other, and that the marriage (and the law that provides for it) is not grounded in anything beyond the desires of the partners to the contract, then what sense does it make to restrict that to opposite-sex couples? And if you give it to same-sex couples, by what rational standard do you keep it from consensual polyamorists?
This is the answer to the simple-minded question one often heard back in the pre-Obergefell days: “How does my gay neighbors’ marriage hurt mine?” The answer many of us gave was that the kind of tectonic social and cultural change it took to make same-sex marriage conceivable, and then finally a legal fact, would have the effect of wrecking the stable ideal of marriage, upon which our civilization was based. Nobody wanted to hear it. When Scalia said so, he was denounced as a crotchety old bigot.
But: “He wasn’t wrong.”
It’s also important to consider how this process has brought us to the transgender moment. Strictly speaking, it need not have done. Scalia laid out the legal logic by which we would get to same-sex marriage, and then legal recognition of polyamory, but he didn’t include transgenderism there, because the legal process he’s talking about related only to sex, not gender.
But as we now know, there is no clear line between the concepts of sexual orientation and gender identity. This is why activists attach the “T” to the “LGB”. What’s the connection? It’s philosophical: the individual and his desires are sovereign in matters having to do with sexual desire, of which gender is felt to be a subset. In Lawrence, the court majority justified its decision by citing “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The SCOTUS majority also found that the Texas anti-sodomy law “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
By that logic, how can SCOTUS fail to endorse transgender claims? I believe there is an obvious legitimate state interest in discouraging transgenderism. But I don’t believe that is at all obvious to an emerging majority of Americans, who have been acculturated to radical permissiveness on all matters sexual.
I just spent a few days in Romania. It was striking to me to observe, as I often do when speaking to audiences in Central European countries, how uncomprehending these people are when I tell them about how far gender totalitarianism — that is, the mandatory acceptance of gender ideology, including trans and gender fluidity — has gone in the United States. They visibly cannot understand what I am talking about. I warn them that they had better not be under the illusion that their traditions and their common sense will make this stuff stop at the borders. Sooner or later, this is coming for them and their kids — and they had better use the time they have now to prepare to fight: to fight for the natural family, to fight for their children, and to fight for the future of their society, and civilization.
Thinking about it this morning, in light of Scalia’s prophetic warning, it occurred to me that in looking out over these Romanian audiences, I was looking at middle Americans circa 1998. If you were able to travel back in time from 2022 and tell an audience in, say, Cape Girardeau, Missouri, what was perfectly normal with regard to sexual orientation and gender identity, they would have found it hard to believe you — just as hard as it is for people in this part of the world to believe in 2022. But it’s true! We have lived through an astonishing revolution, such that even things that were unthinkable a generation ago are not only thinkable, but you will soon be compelled to think of them as normal, and what was once indisputably normal as evil.
This stuff has been forcibly normalized in law and popular culture, and it is leading many of us to normalize it internally. This is how totalitarianism works: you don’t need the state or other institutions to force it on you once you have normalized the ideology, and police yourself for crimethink.
The United States, like much of the West, is in an advanced state of decadence. I was talking last week to a Hungarian, who, speaking of Viktor Orban, said to me, “He looks at the West, and sees no future. He sees it falling apart.” Well, he’s right. I return from Romania even more convinced of the need for the Benedict Option. We don’t have forever to build these arks within which we and our families and communities can ride out the deluge. Remember your Alasdair MacIntyre:
A crucial turning point in that earlier history occurred when men and women of good will turned aside from the task of shoring up the Roman imperium and ceased to identify the continuation of civility and moral community with the maintenance of that imperium. What they set themselves to achieve instead–often not recognizing fully what they were doing–was the construction of new forms of community within which the moral life could be sustained so that both morality and civility might survive the coming ages of barbarism and darkness. If my account of our moral condition, we ought also to conclude that for some time now we too have reached that turning point. What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained through the new dark ages which are already upon us.
The day is coming, and is in fact almost here, when the State, as well as normative institutions in American and Western society, will consider social and religious conservatives who reject the Sexual Revolution (as well as the racialized form of wokeness) to be enemies of the State. That’s when the hard persecution will begin. We are not there yet. But it’s coming. I remind you of the Biden administration’s new HHS document on “gender-affirming care” for so-called trans youth, which I wrote about here. This paragraph in particular:
There is no scientifically sound research showing negative impacts from providing gender-affirming care. The decision for the child welfare system to become involved in the lives of families, potentially to the extent of removing children from their families and homes, should be wielded with the utmost care, grounded in evidence, and always prioritizing the well-being of children and preservation of families.
The administration is laying the groundwork for the seizing of minors from parents who object to medically transitioning their children to the opposite sex. Not even Scalia saw that coming. The usual suspects will say that we who can see this for what it is are being paranoid, and probably bigoted, that it would never happen. I remind you: they said the same thing about Justice Scalia in 2003. I know; I was there.
UPDATE: A reader writes:
“How does my gay neighbors’ marriage hurt mine?” Imagine someone asking this question: How does my neighbor’s counterfeiting hurt my money? Marriage, like money, is by its nature a social reality. Just as you can’t have individual currencies, you can’t individual “marriage.” When the state says that Bob and Fred are “married” it is implying that my marital union with my wife will no longer be legally recognized as one tightly tethered to sexual complementarity. In the same way, when my neighbor counterfeits my money, it is simply not worth the same as it was before he counterfeited. Same-sex marriage, in an analogous fashion, robs us of the knowledge of how real marriage is ordered toward the common good. It is a form of conjugal counterfeiting.