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Justice Scalia, "Originalism" and Homosexuality

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In a speech at the University of California this week, Justice Antonin Scalia, an advocate of the doctrine of "originalism," was asked by a student how an orginialist should apply the First Amendment's guarantee of "freedom of speech" to modern forms of communication. After all, television, radio, movies, email and the Internet did not exist at the time the First Amendment was adopted. Does this mean, the student asked, that the use of such technology does not constitute "speech" within the meaning of the First Amendment?

According to the Wall Street Journal, Justice Scalia responded by explaining that "technological change rarely presented serious obstacles" to his method of interpretation, "because the principles underlying speech and press freedoms . . . can readily be extrapolated to new media."

Another student then asked whether under Justice Scalia's approach to constitutional interpretation the Constitution should "similarly be interpreted to recognize new social phenomena, such as gay relationships," a reference to cases currently pending in the Supreme Court on the issue of same-sex marriage.

According to the Wall Street Journal, Justice Scalia responded: "I don't consider homosexuality a new phenomenon." He explained that homosexuality was known when the Fourteenth Amendment, which guarantees the "equal protection of the laws," was adopted in 1868, and "was considered a crime in most places."

One has to wonder whether Justice Scalia knows anything about the history of which he speaks. In fact, "homosexuality" was not a crime at the time the Fourteenth Amendment was adopted. What was unlawful was "sodomy," which was generally defined to include oral or anal sex, without regard to whether the couple who engaged in the act were of the same sex or the opposite sex. There were no laws against homosexuality. At time the Fourteenth Amendment was enacted people considered sodomy in the same way they considered robbery, burglary or murder. It was a bad thing, and if people chose to do it they should be punished.

Moreover, at that time there was no concept of the "homosexual" as a type of person with a particular sexual orientation. The concept of the homosexual as we now understand the concept did not come into being until long after the Fourteenth Amendment was adopted, at the end of the nineteenth century. Indeed, despite what Justice Scalia seems to think, the word "homosexuality" did not even exist until the late nineteenth century.

It was only then that physicians and psychologists began for the first time to recognize that some people, termed "homosexuals," had a deeply-rooted sexual orientation that led them to be attracted to persons of the same sex. This led to all sorts of complex questions: Was a person's homosexual orientation congenital or acquired? Was it "curable" or incurable? Should it be accepted as an unavoidable condition or should it be actively resisted and suppressed? Many physicians, like Freud, concluded that whatever the cause of a person's homosexual orientation no moral or social opprobrium should attach to it.

Since the 1970s, the consensus among physicians and other mental health professionals is that homosexuality is a normal variation of human sexual orientation. The prevailing view today is that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, a position that has been officially endorsed by both the American Psychiatric Association and the American Psychological Association.

None of this, of course, was known in 1868. Just as those who enacted the First Amendment could not have anticipated cell phones and email, those who enacted the Fourteenth Amendment could not have anticipated our current medical, scientific and social understanding of sexual orientation.

The same reasoning and the same conception of "orignalism" that leads Justice Scalia rightly to conclude that the Framers' ignorance of cell phones and the Internet does not resolve questions about the meaning of "the freedom of speech"should also lead him to the conclusion that the Framers' ignorance about the nature of sexual orientation does not resolve fundamental questions about the meaning of "the equal protection of the laws."

If one is going to be an "originalist," at least one should be consistent about it.