The day of Eliot Spitzer’s ignominious resignation, I reread one of the most splenetic dissents in the recent history of the Supreme Court: the jeremiad Antonin Scalia wrote in response to the Lawrence v. Texas ruling that legalized sodomy. Scalia argued that Lawrence would release a wave of relativism that would ultimately sweep away laws banning “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” Or, as he put it: “This effectively decrees the end of all morals legislation.”
Watching the end of Spitzer’s political career, however, I couldn’t help feeling that Scalia had it entirely wrong. Despite the best efforts of some libertarians, the days of morals legislation are hardly over.
Rosen’s reading of Scalia’s opinion (to which he returns later in the article) is not far-fetched, but I think it is possible to read it slightly differently. On my reading, Scalia is not so much predicting that all morals laws will be nullified as he is arguing that the majority opinion’s logic, taken to its limit, would require their nullification.






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