Gay Sex and Marriage, The Reciprocal Disadvantage Problem, And the Crisis in Liberal Constitutional Theory (Symposium: Law and Morality‪)‬

There is nothing unusual about constitutional controversy, but some disagreements, typified by the argument over constitutional protection for gay sex and marriage, go beyond ordinary differences of opinion. Some opponents of constitutional protection for gay rights think that their adversaries are not just wrong, but have exceeded the bounds of respectable constitutional argument. They want to turn the defense of gay constitutional rights into a position that dare not speak its name. Consider, for example, Justice Scalia. For him, the Supreme Court's defense of gay rights "employs a constitutional theory heretofore unknown" (1) and depends on "a novel and extravagant constitutional doctrine." (2) The Court's treatment of the gay community as a politically unpopular group worthy of constitutional protection is "nothing short of preposterous" (3) and "insulting." (4) A Court opinion striking down discrimination against gay men and lesbians "has no foundation in American constitutional law, and barely pretends to." (5) Justice Scalia is not exactly known for understatement, but even for him, these are strong words. What, precisely, is he so upset about?