With this week's upcoming Supreme Court cases on Proposition 8 and the Defense of Marriage Act (DOMA), the nine justices are sure to have busy week as they sweat under the public scrutiny of one of the nation's biggest civil rights cases in decades. Beginning this week and ending by summer, the Court has an opportunity to determine the law of the land with respect to gay marriage. Recent opinion polls have as many as 58% of Americans in support of equal marriage rights.
One justice, however, should stand out even in this high-tension environment: Justice Antonin Scalia, a notoriously anti-gay judge with a long history of crude and offensive remarks concerning homosexuality. Scalia thinks that homosexuality is immoral, and he's not afraid to let people know it.
Remember, this is a man who thought that asking the White House's Obamacare attorneys whether or not the government could compel private citizens to "buy broccoli" was the height of wit and intellectual prowess (not even considering whether it's appropriate for a justice to throw little "gotchas!" at the court, but whatever). More recently, he has been accused of becoming "increasingly cranky and intolerant" and "an embarrassment even to people who tend to agree with him," an unfortunate "political cheerleader for anti-gay marriage forces and the belief there is something wrong with gay relationships."
It's hard to narrow down Scalia's prolific anti-gay writing into just one short list, but here's eight of the worst moments in the collision between Scalia and gays:
1. Arguing that "animus" was a valid justification for Coloradoans to enact anti-gay laws:
Image credit: Stephen Masker
In Romer v. Evans (1996), Scalia argued that states did not have the right to ban discriminatory practices against gay people, citing "animus" as a valid justification for discriminatory behavior, and arguing that homosexuality was being pushed by an "elite class" which thought "'animosity' toward homosexuality … is evil." On that last part, Scalia said that he "vigorously dissent[s]."
Scalia additionally took the appreciated step of comparing homosexuality to "reprehensible" acts such as "murder, for example, or polygamy, or cruelty to animals."
2. Gays don't have a "fundamental right" to "engage in homosexual sodomy":
In Lawrence v. Texas (2003), Scalia voted against the Court's decision to strike down a then-outdated law prohibiting sodomy (or "sex," as we call it in the 21st century). The case prompted some of Scalia's most homophobic remarks:
The plaintiff would have the Court decided that citizens have "a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do."
"[The Texas anti-sodomy law] undoubtedly imposes constraints on liberty … so do laws prohibiting prostitution, recreational use of heroin, and for that matter, working more than 60 hours a week in a bakery."
So, there you have it. Gay sex can be prohibited under the same moral reasons as prostitutes, shooting up for fun, or working overtime at a bakery (erotic cakes are fine, so long as there's no implication of homosexual sodomy).
3. Comparing gay sex to bestiality and incest:
Image credit: United States Mission Geneva
In the same case above, Scalia's dissenting opinion compared the statue banning homosexual sexual relationships to "state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity."
That kind of implies that Scalia thinks it's okay to ban masturbation too.
4. Accusing the rest of the Court of signing onto the "homosexual agenda" by striking down the Texas anti-sodomy law:
Image credit: Breitbart
Scalia's dissent in Lawrence v. Texas is awful front to back, but this section is particularly angering: "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."
Note that the so-called "gay agenda" has been a longstanding evangelical Christian talking point, motivated less by the unfair power-grabs of a surging gay lobby than by a desire to suppress it entirely.
5. Telling the American Enterprise Institute that laws against "homosexual sodomy" were an "easy constitutional issue":
Image credit: Salon
During a 2012 session with the American Enterprise Institute billed as "valuable insights into the interpretive methods by which judges should decide statutory cases," Scalia commented that abortion, the death penalty, and anti-sodomy laws were "easy constitutional issues" because they weren't written into the document.
"Homosexual sodomy? Come on. For 200 years, it was criminal in every state."
Strangely, Scalia's definition of an easy issue seems to correlate strongly with his personal prejudices.
6. Comparing gays to murderers and insinuating the state can ban either on the basis of "moral feelings":
Image credit: LA Times
"It's a form of argument that I thought you would have known which is called the 'reduction to the absurd.' If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? … I'm surprised you aren't persuaded," Scalia snorted in his typically dismissive tone towards a Princeton freshman in December 2012.
As New York Times columnist Juliet Lapidos commented, "what if most Americans had moral feelings against interracial marriage?"
7. Also in Lawrence v. Texas, claiming that the laws were justifiable in part because many Americans view gay relationships as "immoral and destructive":
Image credit: The Atlantic
"Many 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."
No, Scalia did not make all of these comments directly (largely couching them instead as representative of a class of Americans with valid concerns). However, his sympathy and bias for anti-gay arguments is palpable. It is very clear that Scalia does not think gay Americans deserve protection or equal treatment.
It's appalling enough that Scalia has a prominent, respectable venue from which to parrot anti-gay propaganda ranging everywhere from vile mischaracterizations of homosexuality to blatantly hateful comparisons to bestiality. Unfortunately, his platform also happens to be that of a Supreme Court Justice. This man has significant power over whether current and future generations enjoy equal rights.
And that's troubling.
You might want to expect more of the above comments, if a recent deliberation on civil rights is any indication:
During a February 2013 consideration of a case challenging the constitutionality of the Voting Rights Act, Scalia dismissed the law (which provided equal voting access for millions of black Americans and other minority groups) as the "perpetuation of racial entitlement."
Honorable Mention: Justice Clarence Thomas
Image credit: MarsMeT47
Thomas sided with Scalia in 2003 on Lawrence v. Texas, saying that while an anti-sodomy statue was "uncommonly silly," the state had the right to enforce it since the Constitution does not guarantee a "general right of privacy." He went one step further, joining Scalia in rejecting "both Kennedy's majority opinion and O'Connor's concurring opinion."
Don't worry, though; Thomas clarified that if he was a member of the Texas legislature, he would vote against such a law.
So, remember: while Clarence Thomas might think laws banning consensual sexual activity between loving adults are silly, he has no problem with maintaining and enforcing them.