What I hope dies with Justice Scalia: Toxic Homophobia
I spent my summers between college in the mid 1990s interning in DC: in two Senate offices and at the Secretary of Health and Human Services. Harvard runs a summer program in Washington, which allows the interning undergrads to meet various powerful people around town.
The star of the summer was always Justice Scalia who met us in the Supreme Court building. I went to see him three summers in a row, because, hey, how many chances do college kids get to talk to a sitting Supreme Court Justice?
Justice Scalia was generous with his time. Each year he would give the Harvard undergrads assembled before him a short speech on some constitutional matter, and then he would answer questions from the students.
In the last year I saw him speak (1996), he gave a lecture about Equal Protection. Looking back on it from the vantage of a law professor, the talk was vintage Justice Scalia. Basically he was arguing that there was no way that the framers of the Equal Protection Clause of the 14th Amendment meant for it to cover women, but that much to his chagrin, the Supreme Court was applying Equal Protection analysis to gender. And in retrospect, he likely had US v. Virginia on his mind — a case where the Supreme Court ruled that VMI had to accept women over Scalia’s lone dissent.
When he asked for questions, I did something I had not done the two summers before; I raised my hand. I asked him “whether the Equal Protection Clause applied to gay people who wish to marry.”
Justice Scalia honestly looked at me as if I had two heads. He scowled. He furrowed his brow. He harrumphed. I waited. Finally he said, “I cannot answer that question because the issue might come before the Court.” He called on another student.
I have no idea if I might have been one of the first people to suggest to Justice Scalia that gay marriage was an Equal Protection issue. Or maybe he just wasn’t expecting that from a Harvard undergrad that day, but he seemed genuinely stunned by the question.
He was correct in his response. The issue would come before the Court. First the Supreme Court in Windsor invalidated the federal Defense of Marriage Act (DOMA) and then in 2015 in Obergefell v. Hodges the Supreme Court held that state laws that ban gay marriage are unconstitutional. In both cases, Scalia dissented vigorously as he had in Lawrence v. Texas — the 2003 case that ruled anti-sodomy laws unconstitutional.
Indeed, Justice Scalia’s Lawrence v. Texas, Windsor and Obergefell dissents featured an ugly record of homophobia. In Lawrence v. Texas in an almost laughably defensive line, Justice Scalia claimed, “[l]et me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” But the rest of the dissent revealed his deep homophobia.
For one, Justice Scalia had a bad habit of drawing a false equivalence between gayness and unrelated moral outrages by lumping gay sex in with “bigamy,… adult incest, prostitution, masturbation, adultery, fornication, [and] bestiality…” In another line in Lawrence, Justice Scalia claimed “Texas Penal Code Ann. § 21.06(a) (2003) [about sodomy] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution [and] recreational use of heroin…” He also concluded that: “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”
As justification for the correctness of his position against sodomy, Justice Scalia wrote in Lawrence that it was vindicated by practices of colonial Americans including “records of 20 sodomy prosecutions and 4 executions during the colonial period.” Really? Sodomy should be outlawed now because there were prosecutors at the founding who were so pathologically anti-gay that they pushed for execution of gay men for having sex? This was his logic.
And sounding particularly paranoid about a changing society that was in 2003, actually, gasp, becoming more tolerant of gay people, Justice Scalia wrote of the majority’s ruling in Lawrence that “[t]oday’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
He lamented that “[i]t is clear from this that the Court has taken sides in the culture war [in Lawrence.]” And trying to justify his own prejudice with the prejudices of others he complained, “[m]any 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’”.
In Windsor, which held the federal Defense of Marriage Act (DOMA) unconstitutional, Justice Scalia referred to “traditional moral disapproval of same-sex marriage (or indeed same-sex sex)…” DOMA had defined marriage as being between one man and one woman, thereby barring same sex couples from a host of benefits given to straight couples from tax benefits to burial rights. Justice Scalia referred to DOMA as merely, “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.”
In Obergefell which allowed for gay marriage across America, Justice Scalia’s dissent started with the melodramatic line: “I write separately to call attention to this Court’s threat to American democracy.” In Obergefell Justice Scalia’s dissent mocked gay couples for wanting to get married at all in lines like: “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
Justice Scalia was a brilliant man, but he was also a bully who had one of the most powerful perches we grant lawyers in the country to spout his views. By the time he died, he was woefully out of step with how average Americans felt about their fellow gay citizens. I hope he rests in peace. But I also hope his brand of toxic homophobia is also put to rest.
