Gay Law and the Scalia of Justice

When the tweets came out that the US Supreme Court would hear cases challenging 1996’s Defense of Marriage Act (DOMA) and 2008’s Proposition 8, I paused.  Most of the initial responses I saw seemed happy that the cases would have their day before the Supremes.  My enthusiasm was tempered, however, and I can explain my reticence in two words:  Antonin Scalia.

How I hate that he shares the same first name with one of my favorite composers.

It is hardly difficult to find Justice Scalia’s standing on this issue.  One need only go to Lawrence v. Texas, the landmark 2003 decision that struck down sodomy laws across the country.  Prior to Lawrence, a handful of states still had laws on the books which allowed police to go into your bedroom and arrest you for having consensual sex.  Under those laws, “sodomy” had a pretty broad definition that basically meant anything except the procreative missionary position.  So if the police went on a call and into someone’s home and found two guys having sex, any kind of sex, the men could have been arrested and punished with fines or jail terms.

The Lawrence decision did away with such laws, but not with Justice Scalia’s help.  He vociferously dissented.

Today’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.
– from Justice Scalia’s dissent in Lawrence v. Texas (posted at Cornell University Law School)

He goes on to say that he has nothing personal against homosexuals, “or any other group, promoting their agenda through normal democratic means.” Note this point well.

Just last October, Justice Scalia made public comments at a book reading about his take on hot-button issues:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.
– Quoted from The Huffington Post

He calls himself a “texualist,” that is, one who takes the text of the Constitution very literally.  The Constitution means exactly what the writers at the time meant it to mean, and that’s that.  Therefore, by his logic, the framers did not intend the document to have sufficient elasticity to rule that the death penalty is cruel and unusual or that abortions and “homosexual sodomy” are protected rights.

One can’t help but wonder whether he feels that heterosexual sodomy is a protected right.  Or if he believes through some legalistic legerdemain that the Constitution only protects the missionary position because of its procreative prowess.  But I digress.

The Huffington Post article also states that Justice Scalia prefers that thorny issues like abortion and gay marriage be dealt with by the legislative branch.  He said as much in his dissent in Lawrence.  Folks should urge their elected representatives to pass constitutional amendments, he argues, but then admits that the process is very difficult.

In other words, if it ain’t in the Constitution, we can’t talk about it.  With such Simple Simon thinking, why bother having a court system at all?  We could just have someone whose sole task is to look up issues to see if they are mentioned in the Constitution.  Hell, why pay someone to do it?  Nowadays, we can just use a computer with a search function. Siri could do it.

“Siri, is sodomy mentioned in the United States Constitution?”

“Let me check that for you.  No, gar, I do not see ‘sodomy’ mentioned in the United States Constitution.  Would you like me to search the web for that?”

No mention means it is not a protected right.  Darn.

While he claims not to have any personal animus against homosexuals, he clearly has a problem with granting them rights and equal standing via court decisions, and he uses  “texualism” as an excuse.  This is a cop out, the same sort of cop out that many conservatives use to hinder changes that they do not like.  Justice Scalia tipped his hand about his opinion of sodomy laws in the quote above when he referenced the number of years such laws stood on the books before Lawrence.  For 200 years, he stated, it was criminal in every state.  It was fine for 200 years, he’s basically saying, and it would have been fine for another 200 had it not been for a meddling, activist court.

The other cop out that he uses is the conservative battle cry “states rights.”  In Lawrence he argues that if a state wants to forbid sodomy, however it defines sodomy, so be it.  He believes that if a minority of folks do not like a law which adversely affects them, then they need to appeal to the good graces of the majority of the population to change it.  Forget about the whole business of the courts being the equalizer to protect the minority against the tyranny of the majority.  Again, with that type of attitude why bother having a court system at all?

So it is no secret at all how Justice Scalia will rule on DOMA or Prop. 8.  But think for a moment where such Simple Simon thinking would get us if our courts abounded with Scalias (heaven forfend). Think of all the injustices that would have lingered far too long simply because a “textualist” court refused to interpret the constitution and only slavishly obey it.

I saw “Lincoln” recently, so the issue of slavery comes to mind.  My favorites scenes were those showing the debates in the House of Representatives over the 13th Amendment, which enshrined President Lincoln’s famous Emancipation Proclamation into the US Constitution and ended slavery in this country for good.  Slavery enablers clung to dumb arguments like slavery followed the natural order of things as ordained by God, or that slavery was a “states rights” issue best left to the states.  Indeed, both the natural order and states rights rationalizations appeared in the Articles of Secession of nearly all of the former Confederate States.

Had President Lincoln not doggedly pushed for passage of the 13th Amendment, then the freedoms granted by the Proclamation might have been short lived.  One could easily imagine a 19th century Antonin Scalia salivating at the opportunity to put President Lincoln in his place by squashing his Emancipation Proclamation under the heel of his judicial boot.  After all, prior to the 13th Amendment, nothing in the Constitution outwardly forbade turning a segment of the population into chattel.  A 19th century “texualist” would have no problem with that argument.

“Texualists,” by their own definition, will always be on the wrong side of history.  Undoubtedly Justice Scalia will be on the wrong side of marriage equality and his opinions will be mocked by future generations.  My hope is that his will be but one small, shrill voice that will be muted by a majority that embraces the future and does not fear it.

© 2012, gar. All rights reserved.


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Gay Law and the Scalia of Justice — 2 Comments

  1. Pingback: May We All Choose Love — The Good Men Project

  2. Pingback: May We All ‘Choose Love’ | the gar spot

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