Joel Edan Friedlander*

The Supreme Court's recent decision in Romer v. Evans1 appears to have been written with the expectation that it would become an artifact in our nation's cultural history. Justice Kennedy's majority opinion begins by quoting the sole dissent in Plessy v. Ferguson2. "One century ago," Justice Kennedy intones, "the first Justice Harlan admonished this Court that the Constitution `neither knows nor tolerates classes among citizens.'" Justice Harlan's denunciation of state-enforced racial segregation is resurrected to strike down a state constitutional amendment, Colorado's Amendment 2, which prohibited gays, lesbians and bisexuals from being granted protected legal status.

Never before has the Supreme Court equated a racial classification with laws prohibiting or disfavoring a type of sexual conduct. This fact alone guarantees that Romer will be one of the few cases, such as Plessy, that will always be required reading, whether or not it remains good law.

The overturning of Plessy was partly due to the rhetorical strength of its dissenting opinion. Justice Harlan spoke of a "colorblind" Constitution, the principle upon which the civil rights movement was founded. Those who believe that the Court has again committed a grave error will look for similar sustenance in the dissenting opinion of Justice Scalia. But instead of reading about the inseparability of constitutional government and public morality, there they will smell the hint of self-defeat.

Justice Scalia's dissent is itself historic. Its first sentence invokes a German word never before found in the U.S. Reports: "The Court has mistaken a Kulturkampf for a fit of spite." Colorado's Amendment 2, he explains, was not enacted out of a desire to harm homosexuals, as the majority had assumed. Instead, the amendment was the product of what Scalia calls "the culture wars." In this fight, Colorado had made "a modest attempt . . . to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through the use of the laws."

Justice Scalia accurately describes the fight over Amendment 2 as part of a wider Kulturkampf. According to the leading contemporary theorist of Kulturkampf, the sociologist Philip Rieff, the German conflation loosely translated as "culture struggle" is the process by which every culture renews itself and disarms its competitors—first by words, next by law, and finally, if necessary, by military force.

In Rieffian theory, Kulturkampf is a permanent condition. The history of the West is the history of warring cultures, originally struggles among pagan cultures, and then against and among the monotheistic cultures that originated in Jerusalem. What distinguishes the modern Kulturkampf is that it is now a struggle against inherited culture in all its forms. Modern ideological movements aim to disarm the prohibitions and traditions inherited from classical Judaism and Christianity, such as the prohibition against homosexuality.

Rieff locates the origins of the modem Kulturkampf in Bismarckian Germany. He writes that the word Kulturkampf

first appeared in common German use in the early 1870's during the struggle of the National Liberal political party to disarm by law the moral / educational authority, and political pulpitry, of a triumphalist Roman Catholic hierarchy, revitalized as it then was by its dogma of papal infallibility in matters of faith and morals. The aim of the National Liberals was to shift the German Catholic imagination away from the church to the state.3

The present Kulturkampf is a continued attempt to shift the public imagination away from institutions that impose moral demands, and toward the secular power of the state.

The Romer opinions reveal that Justices Kennedy and Scalia have each made their peace with the state in its continuing struggle against culture. Justice Kennedy sides with the liberal statists on the Court who seek to disestablish both religion and the moral convictions of the religious. Justice Scalia's position is different but no less radical. Having diagnosed the Kulturkampf, he believes that the Court must refuse "to take sides in this culture war" because "the Constitution of the United States says nothing about the subject."

Justice Scalia's neutrality is no affectation. The Romer dissent embodies his deep commitment to judicial deference. The dissent is laced with barbed intensity toward the majority, not because they have taken the wrong side in the Kulturkampf, but because they have taken sides at all.

Unlike Justice Harlan, who appealed to moral principle in Plessy, Justice Scalia reasons from logic and legal precedent. Nowhere in his dissent does he locate the constitutional authority for Amendment 2. Instead, he belittles the majority for their failure to marshal sufficient authorities. Thus in the first section of his dissent, Justice Scalia attacks the illogic of the majority opinion, which he reasons, accurately enough, to be founded on the principle "that one who is accorded equal protection under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws." This principle is not only historically unfounded, Scalia writes, it represents "terminal silliness."

Section two of the dissent inquires whether the prohibition of special protection for homosexuals has a "legitimate rational basis." Justice Scalia concludes that it does, based on the Court's decision ten years ago, in Bowers v. Hardwick4, that homosexual conduct could be criminalized. Chiding the majority for failing to mention Bowers, Justice Scalia reasons that if it is constitutional for a State to make homosexual conduct criminal, the State must be able to adopt a provision "merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct."

These portions of the dissent show how arguments from logic and precedent can be an effective bulwark against assaults on inherited culture. But the second half of the dissent reveals the extent to which Justice Scalia has been rhetorically disarmed by his conception of the judicial role.

Homosexuals, he writes, are a geographically concentrated and politically powerful minority who have used their political power to push for school curricula teaching that "homosexuality is an optional and fully acceptable `alternate life style,'" and to enact local ordinances prohibiting discrimination on the basis of sexual orientation. With this state of affairs Justice Scalia has no quarrel. "I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society."

That extraordinary statement stands unsupported. As Justice Scalia himself observes, the weight of precedent falls exclusively on the side of Amendment 2. Justice Scalia finds historical sanction for Amendment 2 in state constitutional amendments outlawing polygamy and a pair of century-old Supreme Court decisions, both joined by Justice Harlan, that upheld statutes depriving polygamists of the power to vote.

These precedents may justify Amendment 2, but they cannot support Justice Scalia's neutrality. Before Romer, there was no Supreme Court precedent for laws favoring homosexuals over heterosexuals. Do such laws stand on equal constitutional footing with laws criminalizing or disfavoring homosexuality, notwithstanding the radical contemporaniety of the homosexual rights movement? Justice Scalia more than suggests that the answer to that question is yes.

In his dissent, Justice Scalia takes care to distance himself from one of the cases he relies upon, a century-old decision upholding an anti-polygamy statute on the grounds that the statute was "wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union." Justice Scalia quotes the decision but adds a disclaimer: "I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war."

One can only interpret Justice Scalia's disclaimer as evidence of Rieff's maxim that the pretense of neutrality in the Kulturkampf amounts to taking the anti-cultural side in the fight. It is unlikely that any of the ratifiers of the original Constitution or the Equal Protection Clause conceived of heterosexual marriage as anything other than a sacred institution requiring no explicit constitutional protection. The modern Kulturkampf is of more recent vintage. Yet the most prominent originalist on the current Supreme Court is the first to question whether "official praise for heterosexual monogamy" is constitutionally suspect.

Justice Scalia's dissent reveals the progress of the Kulturkampf within legal thinking. On the one surface, he is critical of modern legal reasoning and the ethics it serves. He heaps scorn on the majority opinion, for its lack of intellectual rigor, and on the Association of American Law Schools, for having established that employers must treat a student's homosexuality with indifference, but may withhold a job offer due to the applicant's political party or country club.

On a deeper level, however, Justice Scalia's jurisprudence embraces the same skepticism toward inherited morality that is shared by almost all legal academics today. Justice Scalia may be an observant Catholic, but he has adopted the jurisprudence of Justice Holmes, an atheist whose radical positivism scandalized Catholic natural-law advocates earlier this century.

In dissent, Justice Holmes once famously wrote, "If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."5 Fortunately for our nation, the full implications of this dissent were never tested. Justice Holmes possessed the luxury of writing at a time when communists were a "small minority" who posed "no present danger" of overthrowing the government. Justice Scalia, by contrast, writes with the knowledge that those whose practices he may privately oppose have more allies on the Supreme Court than does he.

Unlike the war against communism, the Kulturkampf is largely a civil war, one in which the fight over constitutional meaning is a central battleground. The jurisprudential question obscured by the many battles is whether the words of the Constitution can be interpreted to sanction assaults on the culture from which the Constitution sprang.

Justice Scalia's positivism not only prevents him from defending the culture to which he unofficially swears allegiance, but as the precedents accumulate on the opposite side of the ledger, Justice Scalia may find himself forced to take the side of his present-day opponents and defend their claims with equal vigor. Until the day before yesterday, he could write that logic and precedent were on the side of those who thought that homosexuals were not entitled to protected legal status. After Romer, Justice Scalia will have difficulty defending restrictions on homosexual marriage, to take but one example soon to confront the Court.

A truly conservative jurisprudence must acknowledge that the Constitution was not written with the expectation that judges would maintain a precarious balance above a raging culture war below. The better reading of our constitutional heritage is to interpret the Constitution against the background of commanding truths that informed the drafters of the document. This was the method of Justice Harlan. It should become the method for conservative Justices, especially if they intend today's dissents to become tomorrow's law.

* Joel Friedlander is president of the Delaware Chapter of the Federalist Society's Lawyers Division. The views expressed in this article are his own and not necessarily those of the chapter.

1 May 20, 1996, No. 94-1039

2163 U.S. 537 (1896).

3Philip Rieff, Newer Noises of War in the Second Culture Camp: Notes on Professor Burt's Legal Fictions, 3 Yale J.L. & Human. 315, 326 (199 1).

4478 U.S. 186 (1986).

5Gitlow v. New York, 268 U.S. 652 (1925)