Breitbart.com editor-at-large Ben Shapiro accused the Supreme Court of engaging in judicial activism in order to promote marriage equality and gay rights, suggesting that the Court wrongly struck down laws criminalizing “anal penetration” in its 2003 decision Lawrence v. Texas.   

In an October 6 article for Breitbart.com, Shapiro condemned the Supreme Court's refusal to take on the appeal of several cases challenging state bans on same-sex marriage. He suggested that the Court's refusal encourages “low-level courts to continue knocking down traditional marriage laws across the country.”

Shapiro compared the Supreme Court's handling of marriage equality to its handling of state laws criminalizing gay sex, including its 2003 decision in Lawrence v. Texas, which struck down state anti-sodomy laws across the country:

The Court clearly wants to wait until a majority of states have been forced to embrace same-sex marriage by lower-level appeals courts. Then they can determine that a “trend-line” has been established, suggest that society has “evolved,” and declare that a new standard must be enshrined. That, of course, was the logic of Lawrence v. Texas (2003), in which the Court waited 17 years to overrule Bowers v. Hardwick (1986), stating that anal penetration was a hard-fought Constitutional right; the Court in that case stated that Bowers no longer applied because of “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Justice Scalia rightly pointed out that the Court's statement was false - the state, he explained, still regulates “prostitution, adult incest, adultery, obscenity, and child pornography.” And Scalia also pointed out that “Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior.” [emphasis added]

Shapiro isn't alone in criticizing Lawrence - many prominent opponents of marriage equality also think the Supreme Court was wrong for striking down laws criminalizing homosexuality - some of which are still wrongly enforced to target and harass LGBT Americans. Justice Antonin Scalia's reasoning - that decriminalizing homosexuality would lead to the invalidation of incest, bestiality, and bigamy laws - has evolved into a popular conservative argument against marriage equality.

Still, it's notable that Shapiro, who has previously asserted that gay people aren't discriminated against in America, disapproves of a Supreme Court decision that stopped gay people from being thrown in jail just for having sex in the privacy of their own homes. And it might help explain why Breitbart.com has become a hotbed of anti-LGBT extremism that goes far beyond simply opposing same-sex marriage.