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Ear to the Ground

Scalia Freaks Out in Gay Marriage Dissent

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Posted on Jun 26, 2013
Flickr/US Mission Geneva

Justice Antonin Scalia had what amounts to the equivalent of a legal meltdown in the dissent he wrote for the Defense of Marriage Act case, dismissing the majority opinion as “legalistic argle-bargle” and claiming that it promoted “homosexual sodomy.”

“When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with ‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter,’ he wrote. “Now we are told that DOMA is invalid because it ‘demeans the couple, whose moral and sexual choices the Constitution protects,’ ante, at 23—with an accompanying citation of Lawrence.”

Scalia also issued a stern rebuke of Justice Anthony Kennedy—who wrote the 5-4 majority opinion—and the justices who signed on to it, accusing them of painting gay marriage opponents as “enemies of the human race.” Talk about overly dramatic!

He wrote: “But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change, it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Salon’s Alex Pareene:

Scalia moans at length that Justice Kennedy’s decision is mean to anti-gay marriage people. It is so mean to them! People who oppose gay marriage are the Real Victims here, because Justice Kennedy has accused them of demeaning gay people simply by wishing to deny them the right to marry.

...The actual lives of gay people — the specific rights and benefits denied them by DOMA and related legislation — never enter into Scalia’s thinking, at all. What matters most is the hurt feelings of social conservatives, who have been accused of malice against homosexuals. (I never knew Scalia cared so deeply about what his political opponents thought of him. He seemed like a thick-skinned fellow before this.)

This is the gay-marriage version of the “calling something racist is worse than racism” argument currently so popular among aggrieved white conservatives. (Justice Roberts basically made this argument in the court’s horrible Shelby County v. Holder decision. Calling former Confederate states racist is racist against former Confederate states!) It is the lamest of last-resort arguments, and I’m not sure how same-sex marriage opponents expect same-sex marriage advocates to respond to it. Most people who support gay marriage — which is now most Americans — believe that gay marriage bans are discriminatory and unfair, and based more on fear and disgust than any sort of reason or logic. There seems to be plenty of evidence — including evidence in Scalia’s own history of opinions and statements — that most opposition to gay marriage is rooted in irrational dislike of gay people, with half-assed appeals to “tradition” laid on top. When people point that out, they are accused of accusing their opponents of being monsters. But I’d love to hear how one is supposed to say “I think you’re dead wrong on this moral question” without sounding too judgey.

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Scalia’s rage over Wednesday’s decision—at least in the Defense of Marriage Act case—perhaps can best be characterized by comedian Andy Borowitz, who wrote a satirical item for The New Yorker in which he envisioned an angry Scalia getting arrested after attempting to burn down the Supreme Court over its ruling.

In a fitting touch, Borowitz wrote, “Back at the Supreme Court, Justice Scalia’s colleagues said they hoped he would get the help he needed, except for Justice Clarence Thomas, who said nothing.”

—Posted by Tracy Bloom.

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