Scalia scrutinized as Supreme Court takes on gay marriage

BY NATASHA BARSOTTI — On the heels of the US Supreme Court’s decision to hear arguments in two gay marriage cases — one involving California’s Prop 8 that bans same-sex marriage, another on the Defense of Marriage Act, which denies federal benefits to legally married gay couples — Justice Antonin Scalia is coming under increasing fire for equating laws banning anal sex with those barring murder and bestiality.

At a recent event at Princeton University, gay student Duncan Hosie confronted Scalia, now the longest-serving justice on the court, about his dissenting opinions in two gay rights cases — Romer vs Evans (1996) and Lawrence vs Texas (2003). In the first case, as quoted in a New Yorker opinion piece, Scalia wrote in part, “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.”

In the Lawrence case, Scalia wrote that while he has nothing against homosexuals “promoting their agenda through normal democratic means,” he stated that the court’s majority opinion in the case demonstrates that it “has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

“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,” Scalia further states in the dissenting opinion. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia noted that the Texas statute “undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable.”

Hosie told Scalia there is a fundamental difference between arguing that the Constitution does not protect gay sex, “a defensible and legitimate legal position” he disagrees with, and “comparing gays to people who commit murder or engage in bestiality.”

Hosie wanted to know if Scalia had any “regret or shame” for making those comparisons.

Scalia did not.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia says in his reply to Hosie. “Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.”

Writing in The Washington Post, Dana Milbank notes Scalia’s concern, included in his written dissent on the Lawrence case, that repeal of laws that are oppressive should be left to the people, not to a court that is “impatient of democratic change.”

Milbank points out that support for issues like gay marriage are also being spread by democratic change. Voters in three states — Maryland, Maine and Washington — all voted in favour of same-sex marriage; in Minnesota, voters said no to an amendement that would have relegated marriage to being solely between a man and a woman.

In her New Yorker piece, Amy Davidson observes that two-thirds of those under 30 in the US support same-sex marriage. What Scalia is missing, she says, is that an “increasing number of Americans have found that when legal strictures and open discrimination are stripped away they are left not with the reprehensible, but with neighbors, friends, and family members whom they love, and see loving each other.”

In The Atlantic, senior editor Garance Franke-Ruta says people need to stop being outraged by Scalia’s views in this area because they are not news.

“It’s been his carefully considered legal judgment, laid out for nearly a decade in comments and rulings from the bench, that widely shared negative moral judgments are an acceptable basis for legislative action under the U.S. Constitution, and that the fact that negative sentiments about homosexuality have historically been the dominant view ought to be accorded significant weight in considering cases involving it,” she writes.

What remains to be seen as the Supreme Court prepares to weigh in on Prop 8 and DOMA, she says, is how he reacts to the “growing change in public opinion about gay relationships and the growing legislative success of the gay marriage movement.”