Is Scalia Too Bigoted to Serve on the Next Gay Marriage Case?
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 Slate.com 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.
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. But when no escape proved possible in the court’s other 2013 landmark gay marriage case, U.S. v. Windsor, Scalia penned another hot-blooded dissent, condemning the majority’s “bald, unreasoned” decision to overturn a key provision of the federal Defense of Marriage Act and forecasting a chain reaction of similar rulings at the state level.
Ironically, that is exactly what has happened. Since the Windsor ruling, 13 federal district court judges across the country, most recently in Pennsylvania, have invalidated state bans on gay marriage for violating the 14th Amendment’s guarantees of equal protection and due process. Appellate arguments on such cases have been completed in circuit courts sitting in Oklahoma, Virginia and Utah, paving the way for ultimate review by the Supreme Court.
Through it all, Scalia has remained unrepentant and defiant. “I have friends that I know, or very much suspect, are homosexual,” he remarked in an October 2013 interview in New York magazine. “I’m not a hater of homosexuals at all. I still think it’s Catholic teaching that it’s wrong. In my legal opinions, all I’ve said is that I don’t think the Constitution requires people to adopt one view or the other.”
The truth, as we have seen, is that Scalia has said that and a whole lot more. The only question is what to do with him.
Canon 3, Section C of the Code of Conduct for United States Judges mandates disqualification in any proceeding in which the judge’s impartiality may be questioned, specifically in cases in which the judge harbors a personal bias or prejudice toward a party.
Any lower-court federal judge who had repeatedly mouthed off against an entire class of litigants the way Scalia has demonized gay Americans would long ago have been marched out the courthouse door. Unfortunately, although Scalia clearly meets the disqualification standard, the canons do not apply to the justices of the Supreme Court.
Still, that shouldn’t stop us from demanding that Scalia step down and recuse himself on his own motion when the next gay marriage case comes before the court. There is no place for bigotry on the nation’s top tribunal.Wait, before you go…
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