Try guessing who it is mapping out the logic here:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?
That was written by none other than Scalia in his dissenting opinion for Lawrence v. Texas.
The reason he doesn’t embrace the conclusion he maps out, of course, is that he doesn’t accept the antecedent in this conditional. Scalia believes the state does have an interest in enforcing morality, and he further believes that homosexuality is an example of immorality.
Interestingly, I think I am with him on the former claim. It’s just the latter that I obviously reject. I’ve just finished a political philosophy essay on the concept of a right to do the wrong thing. My conclusion, roughly, is that contrary to Waldron’s and Dworkin’s claims there is no such thing. If something is wrong, then it is always going to be an open question whether or not the state should interfere with it. But I don’t think this has any illiberal implications because all the things we wish to tolerate are not, upon reflection, genuine examples of wrongdoing.
I’ll link to the paper when I can. I just have to wait a few weeks for the submission deadline to pass.