"Now, bigamy involves protection of an institution that the State creates for its own purposes, and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these people's behaviors," the lawyer told Scalia.
The majority overturned its own 1986 precedent, Bowers v. Hardwick, and ruled for the homosexuals. In Bowers, Justice Byron White, a John F. Kennedy appointee, had flatly rejected the argument that a state could not base its laws on morality.
"The law, however, 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," said White.
Chief Justice Warren Burger concurred. "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching," he said.
Dissenting from the court's 2003 opinion in Lawrence, Scalia foretold what would follow from the court's decision in that case to overturn Bowers and attack the principle that the law is based on morality.
"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," said Scalia. "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."
Obama's decision to attack rather than defend the Defense of Marriage Act in court validates Scalia's warning. The Obama administration is arguing that for an individual, an institution or a state to discriminate against same-sex "marriages" is akin to discriminating against people because of their race.
By turning our law upside down, Obama would turn our society inside out. Racial discrimination is wrong for the same reason homosexual behavior -- or, for that matter, bisexual behavior -- is wrong. Racial discrimination violates the natural God-given law that is the only source of any legitimate law of the state.
When the Founders created this country, they rightfully pointed for justification to the "Laws of Nature and Nature's God." They said that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
No rational person could argue that there is a God-given right to same-sex marriage or bisexual behavior. To justify such things, as Chief Justice Warren Burger wrote only a quarter-century ago, one must "cast aside millennia of moral teaching."
As he seeks to remove God as the ultimate source of our law, with whom will Obama replace Him?