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]
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.
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.