A look back

Feb 15th, 2016 | By
Category: Notes and Comment Blog
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In 2013 Mother Jones collected some opinions of Scalia’s on people who are not straight.

In his dissent in Lawrence, Scalia argued that moral objections to homosexuality were sufficient justification for criminalizing gay sex. “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,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Some people think obesity is immoral and destructive—perhaps New York Mayor Michael Bloomberg should have imprisoned people who drink sugary sodas rather than trying to limit the size of their cups.

Many _____ do not want persons who [a lot of things] as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home, but that by itself is not enough to ban everything inside those brackets. People have stupid baseless prejudices; we all do; that doesn’t mean we get to exclude or punish or humiliate people who set off our prejudice buttons. You need more than that.

In his dissent in the 1996 case Romer v. Evans, which challenged Colorado’s ban on any local jurisdictions outlawing discrimination on the basis of sexual orientation, Scalia brought out an analogy that he’s used to attack liberals and supporters of LGBT rights for years since. “Of course it is our moral heritage that one should not hate any human being or class of human beings,” Scalia wrote, in the classic prebuttal phrasing of someone about to say something ludicrous. “But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct[.]”

Yes, but some flavors of moral disapproval are more reasonable than others. Some are not reasonable at all, and homophobia fits that category pretty neatly.

Obviously Scalia knew that; everyone says he had a brilliant mind, including people who loathed his judicial philosophy. But he said what he said.

During oral arguments in Lawrence, the attorney challenging the Texas law argued that it was “fundamentally illogical” for straight people to be able to have non-procreative sex without being harassed by the state while same-sex couples did not have the right to be “free from a law that says you can’t have any sexual intimacy at all.” But Scalia pointed out that gays and lesbians could just have sex with people of the opposite sex instead. “It doesn’t say you can’t have—you can’t have any sexual intimacy. It says you cannot have sexual intimacy with a person of the same sex.” Later on in his dissent, Scalia argued that Americans’ constitutional right to equal protection under the law wasn’t violated by the Texas law for that reason. “Men and women, heterosexuals and homosexuals, are all subject to [Texas’] prohibition of deviate sexual intercourse with someone of the same sex.” That should sound familiar: It’s the same argument defenders of bans on interracial marriage used to make, arguing that the bans were constitutional because they affected whites and blacks equally.

Rich and poor alike are free to sleep under bridges.

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