Why I Called Justice Scalia A Homophobe

While responding to questions from journalists about my characterization of Justice Antonin Scalia as a homophobe, I realized that the fact that I made that comment in conjunction with a potential lawsuit about the Defense of Marriage Act created some confusion as to my basis for that characterization.

My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability.

This comes out most clearly in his very vigorous abjection to the court's decision to block a criminal prosecution against two men who had consensual sex in the privacy of their bedroom. And it is made very vivid in the passage in which he affirms society's right to treat homosexuals unequally by citing other categories which deserves such treatment -- beginning with murder.

It is of course possible for reasonable people to differ over what the Constitution requires in these cases. But the point is that Justice Scalia goes far beyond simply denying that there is a constitutional right here and makes clear his support for the discriminatory policies based on his condemnation of homosexuality. This is best illustrated by the contrast between his writing in the criminal sodomy case and that of Justice Thomas, who in disagreeing with his colleague's view that the Constitution prohibits criminal prosecution for private consensual sex between adults, notes that he believes that the law in question is "remarkably silly" and notes that he would have voted against it if he was in a legislature. So while both Justice Thomas and Justice Scalia are in the minority upholding the right of criminal prosecution, Justice Thomas makes clear his disapproval of this as a matter of policy while Justice Scalia enthusiastically embraces it.

I have attached some of the relevant quotations from the two opinions:

JOHN GEDDES LAWRENCE and TYRON GARNER,

PETITIONERS v. TEXAS

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

TEXAS, FOURTEENTH DISTRICT

[June 26, 2003]

No. 02-102

SUPREME COURT OF THE UNITED STATES

Lawrence vs. Texas was a landmark US Supreme Court case in which the court struck down the sodomy law in Texas, which was specifically targeted against homosexuals. Justice Scalia authored the dissent, joined by Justices Rehnquist and Thomas.

DISSENT - JUSTICE SCALIA

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

ROY ROMER, GOVERNOR OF COLORADO, et al., PETITIONERS v. RICHARD G. EVANS et al.

on writ of certiorari to the Supreme Court of Colorado

[May 20, 1996]

In Romer v. Evans, the US Supreme Court ruled against an amendment to the Colorado state constitution which would have prevented municipal governments from taking action to protect homosexuals from discrimination. Justice Scalia wrote the dissent, with Justices Rehnquist and Thomas joining.

DISSENT-JUSTICE SCALIA

First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.....

But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.

Comments

[Mike Ketterman]

So, religious protection in the constitution is only one way, it protects religion from government. Religion can do what ever it wants to influence government. If the religious feel it's in the best interest of society to ban gay marriage then they should use laws enforced by government. And if the government thinks the law is wrong it should stay out of religion because the constitution say religion is free.
If the good religious people of America want to protect their children from being "in their opinion" corrupted, they have every right w/o government involvement to stop it.
OK. Now what if the good religious people "in their opinion" feel the Mormons are trying to corrupt their children by pulling them away from the true Christian God and over to the false Mormon God? They pass a law banning marriages performed in Mormon temples? Does government get involved now? and if so why?
I know I'm just a lay person and I don't have the enlighten understanding that you have granted your self.

[Alex Hall]

So, in all honesty, how could you deny someone of happiness? How is it "corrupting" our children's minds? Marriage should be recognized as only a civil union of two people, not a man and a woman. Love is love, you cant take/deny that from someone just because they happen to like the same sex. I believe that your religion complex isn't quite a comparative issue.

[Bucinka]

Without reading through the 1382 (!) comments posted so far, let me say just that the radical right has been whining about activist judges for many years now, and that is exactly what Scalia is. Since his appointment, his approach seems to be, "here's what I feel" (not think) "...now let's see, what citations do I use to back that up?"

[connorin]

Its noce to have a Judicial and Constitutional scholar like you on this site.

[ConcernedAboutRFuture]

Because you have GUTS and speak for those of us who cannot!

You are wonderful Mr. Frank. And thank you!!

[VANG123]

I don’t think that Justice Antonin Scalia should interpret the law based on his own personal beliefs, but instead on what is written in the Constitution. I don’t understand why Scalia thinks that discrimination based on sex is permitted by the Constitution because the Fourteenth Amendment is the Equal Protection Clause. It states that all men are created equal and that no person can be denied the equal protection of laws, so why shouldn’t homosexuals have the same rights as any other person? He also says that it is in society’s interest to deny rights to homosexuals. I thought that the Judicial Branch was designed so that judges’ decisions on cases weren’t responsive to what the public thinks, but to the what the Constitutions says. So why is Scalia making decisions based on what he says society believes? He is supposed to apply the law to cases and the law clearly says that all men should be treated equally.

[VikingQuest]

"It states that all men are created equal and that no person can be denied the equal protection of laws, so why shouldn"t homosexuals have the same rights as any other person?"

They do have the same rights, marriage isn't a right though.

[WilliamP]

The SCOTUS case Loving vs. Virginia makes the right to marry a fundamental individual right. If the state is going to limit that right to heterosexuals, it will need a rational purpose for doing so at the very least under the Court's method of scrutinizing laws. The current court may find such a purpose, but only by deluding themselves into believing that banning gay marriage does anyone any good.

[bannorhill]

Every unmarried man has the rigght to marry any unmarried woman. Every unmarried woman has the right to marry any unmarried man. Everyone is treated the same.

[Tabasco]

Scalia's historical or 'Originalist' view of our founding documents (regardless of evidence) has been that our beginnings are strictly Christian. And despite even the lack of anything but a single mention of a "Creator" on the Declaration of Independence, he will extrapolate his views through that colored glass.

Yes. He IS a legal scholar. But that does not free him from using his personal beliefs for legal opinions.

What's clear in Scalia's dissents are:

Equal rights and protections of minority groups are subject to the opinion and judgement of the surrounding population's moral or religious views.

That affirming equal rights and protections to these groups somehow restricts the so-called 'moral' citizen's rights of expression, and might even endanger their children.

That the Court has no place in equal rights and protection judgements when it comes to a person's sexual preference...... if he or she is gay.

But to put things into context. Catholic laymen were virtually excluded from government (or even assembling official congregations) from the founding of our Government almost til the Civil War. It could just as easily be said the our Founding Fathers intent was to deny Catholics equal protections... and, if you are an Originalist, should apply today.

Let's hope Scalia finds retirement soon. He's a looney attached to a legal scholar's brain.

[AbbieXHoffman]

perfectly said.

[WilliamP]

I agree that the extension of Scalia's views reflect Chritian values. His view is that the constitution allows the government to make laws to promote the moral views of society. It just so happens that much of America is Christian and prefers to follow Christian morals. So, when society makes laws based on morality, they turn out to reflect Christian views. I'm sure that he has no problems with this result given his socially conservative views.

I also think that he does believe that the Court should involve itself in the protection of rights of gays, but that the Court need only determine whether laws interfering with those rights are rational. But he also believes that since homosexuality is immoral, it's always rational to restrict the rights of those likely to engage in such acts (dissent in Evans v. Romer). So in practice, gays' rights don't matter.

I think his legal views are often a justification of his social views. There is hardly any other reason why he would give such deference to states' arbitrary moral views over individuals' rights.

[Tabasco]

Well said. Thank you.

[AbbieXHoffman]

the court is, "seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress"

Isn't the Constitution supposed to protect the minority from the tyranny of the majority when it comes to most things ESPECIALLY personal liberties and civil rights?

[apexfork]

The constitution protect from the tyranny of the majority? Not if you're wealthy...

[AbbieXHoffman]

Ugh--another class warrior. Yawn,

[AbbieXHoffman]

Scalia's decision is CONTRADICTORY and IRONIC

CONTRADICT­ORY--Basic­ally Scalia is saying that in some cases there is a legal individual right to discriminate but it not a legal individual right to decide to engage in sodomy. Now that's just a whole lot of stupid.

OVER-REACHING: So because the Constitution says that in some cases it's perfectly okay to discriminate against gays in public (because some people are uncomfortable with their lifestyle) then it should be okay to discriminate against gays in the privacy of their bedroom. What about my individual liberty to be uncomfortable with having anyone decide what an American can do in the bedroom. Why aren't you protecting that Scalia?

And this man is supposed to be a though leader in our country. How scary.

[ConcernedAboutRFuture]

No this is the man that RUINED our country by putting Wyuk in charge of it.

[Stonewaller]

If you & I have right and the power to impose our liberal beliefs on others or support entirely liberal
courts, we are in no postion to complain or protest when Right excercises power to impose their
conservative beliefs and support entirely conservative courts. I think it would be preferable were
both parties to seek a balance of liberals, moderates & conservatives on courts at all levels. Radical
swings in courts erode public faith in this last bastion of Constituional protection of all our rights.

[AbbieXHoffman]

That's because you don't understand that what liberal courts to is take away the power of the government to control a persons life.

It's ironic that conservatives want government out of everyone's financial lives but to be very much in their personal lives. In turn, liberals want the government more in everyone's financial lives but out of their social lives.

[Stonewaller]

On account of gerrymandering as well as concentrations of population groups, vote of one man with
a common group interest may not in fact be as determinative as that of another man with common
group interest. Thus, concentration of religious fundamentalists in Utah may give disproportionate
influence to that group just as concentration of Jews in New York, Catholics in Maryland, Protestants
in New Hampshire, Irish in Chicago, Italians in Baltimore, Puerto Ricans in New York City, Mexicans
in Houston, Cubans in Miami, Chinese in San Francisco, Koreans in Los Angeles, Vietnamese in
Atlanta, Hmong in St Paul, Gays in DC may wield disproportionate power when it comes to concerns.

Democrats have not lived up to commitments when it comes to DOMA, DADT, ENDA and so forth; we
don't expect equivalent support from Republicans. Likewise, no less than 25% of Democratic voters
and more Democratic legislators opposed Same Sex Marriage in 30 states where we have lost.

[Stonewaller]

It has been repeatedly stated that the law is not designed to keep populace from making stupid
determinations or "silly" decisions as observed by Justice Thomas. Different levels of scrutiny are
employed depending on judge's perception of likely finding unconstitutionality of law. If judge does
not believe law should be found unconstitutional, Justice is not supposed to apply "strict scrutiny."
Fact that you or I might think law unconstituiona does not govern level of scrutiny which must be
applied. Me the liberal wishing it were otherwise does not make it so and such logic could be
dangerous should conservative opponents excercises similar approach when in power.

Though I could not disagree more with Justice Scalia, I do not think him a hypocrite. Indeed, he is
probably one of most consistent members in history of Supreme Court. Though I could not agree
more with Justice Douglas that does not mean he was not legislating from the bench.

[riversideliberal]

What the populace likes or hates, is not a good barometer of public policy. There have been times when slavery and wife-beating were accepted practices... and when laws prohibiting those practices produced angry outcry. The people's preferences are often wrong... and there is no consensus among the people, anyway.

The fact that some narrow-minded people wouldn't like gay teachers or gay neighbors doesn't mean that such prejudices are legitimate or that discriminatory practices should be protected under the law. The logic behind such practices conflates being gay with being dangerous, and that is stupid.
Most child molesters are straight, and most are related to the victim. There is no logical or legal discrimination against gay teachers.

And as for arguments about acceptance of homosexuality or gay marriage leading to marrying dogs or group marriage... they made equally dumb slippery slope arguments about allowing inter-racial marriage 60 years ago.

I see no legitimate Constitutional distinction between heterosexual and homosexual marriage. Two consenting adults, with legal rights in our democracy, ought to be able to form a legally recognized union. And they should certainly be able to work, live, be safe, and have sex wherever they want, just as straight couples do.

Justice Scalia is the one out of touch with American thought, not the majority opinions striking down homophobic legislation. The Constitution doesn't give the government the right to decide what we're allowed to define as the "pursuit of happiness."

[MomfromTexas]

"And as for arguments about acceptance of homosexuality or gay marriage leading to marrying dogs or group marriage... they made equally dumb slippery slope arguments about allowing inter-racial marriage 60 years ago."

As far as dogs are concerned, they aren't consenting, so that doesn't count. As far as group marriage is concerned, I, too, have wondered if changing marriage laws to legalize gay/lesbian marriage won't open this door. I don't have any problem with group marriage, though. I think that consenting adults should be able to marry, if they want to. Period.

[Nagarjuna]

You haven't known some of the dogs I have!

[ThisIsAllJustADream]

thanks, Barney, for exposing Scalia as the small-minded man he is. it's tragic that someone of his temperament should be on the supreme court.

[Stonewaller]

Bush advocated that every American should own home regardless of whether individual or family
worked for it and Democrats did not oppose idea. While home is greatest asset of most Americans,
property was something that Americans had to work for historically not get for free thru welfare state.

Now nation is in position where those who did not puruse deal that was too good to be true must pay
taxes to pay for mortgages obtained by others who did not pass up such deals notwithstanding that
based upon combo of assets & income the latter would never ever be able to pay back mortgages!

[Stonewaller]

Again most lay ppl & many lawyers do not properly understand 14th Amendment which is one of so-
called Civil Rts Amendments. It has to do with due process when it comes to deprivation not equality
of citizens -- let alone others -- in all circumstances. My wishing it were otherwise does not make it so.

As many Straights oppose Same Sex Marriage for Gays and Lesbians, Gays and Lesbians oppose
polyamorous marriages for Bisexuals notwithstanding that Bisexuals are supposed to be equal
partners in GLBT Rights Movement. Many Gays do not think transgenders should be included.

Democrats -- including Barney Frank -- did little to oppose stripping of regulations relating to finance
industry in general and stock trading in particular. Though I do not think Frank incompetent, there is
plenty of blame to go around. Just as housing crash is product of both predatory lenders and
borrowers who saw deals that were "too good to be true" and leapt upon them.

[superstition]

"It has to do with due process when it comes to deprivation not equality
of citizens -- let alone others -- in all circumstances."

Huh? It says all Americans are citizens. Not state can make/enforce laws that abridge their constitutional (US Constitution) rights. Due process is required for reducing liberties/property (such as by imprisonment). NOR deny equal protection (equal rights).

So, you missed the last part.

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

[Stonewaller]

Again most lay people and many lawyers do not understand Freedom of Religion or Establishment of Religion clauses of Constitution. Separation of church & state has to do with the State not interfering
with religion such as by establishing national church or taxing church property as was the case in
England at the time of the Revolution (not to mention now); it has nothing to do with churches or
people religious attempting to influence through their beliefs President, Congress or Judiciary .

Personally, I believe that separation of church and state should mean that the church may not interfere
in matters of state; but that is not the meaning of the clause and it has correctly not been interpreted
as such by the courts. Though I would object to Congressperson supporting anti-abortion or similar
legislation on basis of religious beliefs as opposed to secular thinking, fact is that it is not violation of
of either Establishment Clause, Religion Clause or otherwise separation of church and state. Sorry):