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Is Scalia Too Bigoted to Serve on the Next Gay Marriage Case?

Posted on May 22, 2014

  Supreme Court Justice Antonin Scalia, pictured here in 2010. Stephen Masker (CC-BY)

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The issue of same-sex marriage is destined to return to the Supreme Court, perhaps as early as next term, to resolve once and for all whether gay couples should have a nationwide constitutional right to wed. When it does, Justice Antonin Scalia—to quote a line from the old James Bond movies—must be shaken, not stirred, from any notion that he is fit to deliberate on the subject. As a matter of fundamental fairness and decency, he should recuse himself as soon as any new case reaches the high court’s docket.

In a string of judicial opinions and public appearances dating back at least to the mid-1990s, Scalia has demonstrated that he cannot evaluate questions of gay rights with the temperament and open-mindedness expected of a judge. To the contrary, as writer Mark Joseph Stern has noted, Scalia time and again has expressed views that “explode any notion of judicial remove, rocketing beyond casual homophobia into the repugnant realm of virulently anti-gay invective.”

Among the many diatribes that Stern chronicles, Scalia has compared homosexuality to murder, polygamy and animal abuse, and equated homosexuals to drug addicts and prostitutes. And the bigotry has remained steadfast over time.


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In a caustic and paranoid 1996 dissenting opinion in Romer v. Evans—his first major gay rights case as a sitting justice—Scalia characterized a Colorado voter initiative that would have stripped gay men and lesbians of civil rights protections as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Scalia mocked the court majority, which ruled 6-3 to invalidate the ballot measure, for intervening in what he considered a minor “Kulturkampf” that had been properly resolved by the electorate. The state’s voters, he thundered, had every right to treat homosexuality with the same sort of “animus” that had produced “centuries old criminal laws” against “murder, for example, or polygamy, or cruelty to animals.”

Seven years later, dissenting again with the same trademark snarkiness in Lawrence v. Texas—another 6-3 ruling that overturned the state’s sodomy statute—Scalia ventured even further, fully embracing the lexicon of Christian fundamentalism to denounce what he termed “the homosexual agenda.” Conceding that the Texas statute imposed “constraints on liberty,” he argued that “laws prohibiting prostitution, recreational use of heroin, and for that matter, working more than 60 hours a week in a bakery” do the same thing. The Texas strictures, in his twisted estimation, were valid as they sought no more than to “further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable,” much in the way that society criminalizes incest and child pornography.

In the succeeding decade, as public attitudes toward gay marriage shifted dramatically, Scalia’s remained fixed in a repressed and idealized past, bolstered by his legal philosophy that judges at all times should remain faithful to the original intent of the Founding Fathers when construing the scope of constitutional rights. Confronted by a flabbergasted gay undergraduate during a December 2012 speech at Princeton University, Scalia defended his past pronouncements, asking the student, “If we cannot have moral feelings against homosexuality, can we have it [sic] against murder? Can we have it against other things?”

As loathsome as his views on homosexuality may be, Scalia is not a fool. Rather than risk a historic defeat over the constitutionality of gay marriage, he joined Chief Justice John Roberts’ majority opinion in June in Hollingsworth v. Perry, dismissing rather than ruling on the merits of a case brought by supporters of California’s Proposition 8 who sought to reinstate the measure outlawing same-sex unions after it had been overturned by a district court judge. 


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