Justice Antonin Scalia: Definitely Not a Champion of Gay Rights

In SCOTUSblog’s recent article, “Same-sex marriage symposium: Justice Scalia’s constitutional case for gay marriage,” author Dale Carpenter argues that Scalia’s dissent in Lawrence v. Thomas (2003) will actually help the Court decide in favor Prop. 8’s constitutionality when a challenge to the law reaches the Court. (Lawrence is the case that struck down Texas’ anti-sodomy law as unconstitutional using several Fourteenth Amendment arguments; Prop. 8 is a California ballot proposition-turned-constitutional amendment that bars same-sex couples from getting married.) As the article explains, Scalia’s dissent seems, if anything, to provide constitutional support for same-sex marriage. Carpenter writes,

“Lawrence, according to Justice Scalia’s reading, decided that heterosexuality could have no preferred constitutional status. And legislatures could not act on the moral belief that it does. Lawrence, in Scalia’s view, radically pushed the boundaries of American constitutional law… Same-sex marriage, he suggested, is the “logical conclusion” of Lawrence. Only “the people” – not judges – are free to avoid such logical conclusions, he asserted. He mocked the Court’s pretension “that we need not fear judicial imposition of homosexual marriage” as a result of Lawrence.”

This article caught me by surprise because, while the dissent certainly can be read through Carpenter’s pro-gay marriage lens, Scalia himself is clearly not pro-gay marriage. Even more so than in the Lawrence dissent, Scalia’s stance on the homosexual community can be seen in his dissent in Romer v. Evans (1996), which Carpenter touches upon briefly but does not dissect.

The basic facts of Romer are as follows: In the state of Colorado, a new amendment to its constitution passed after a 1992 referendum. Called “Amendment 2,” it would have prevented any city, town, or county in Colorado from recognizing gay and lesbian citizens as a “protected class.” The Court struck down the Amendment in Romer as being a blatant violation of the “strict scrutiny” argument that arises from Fourteenth Amendment judicial philosophy—in other words, the Amendment was found to unfairly single out one class of people from another and apply a law to them unequally. Personally, I agree with this decision, and believe that Fourteenth Amendment analysis was the correct way to judge the Amendment. Scalia disagrees, however, and does so with his usual vehemence.

Early in Part I of his dissent, Scalia attempts to explain the law in the following manner:

“The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death-benefit payments to the “life partner” of a homosexual when it does not make such payments to the long-time roommate of a nonhomosexual [sic] employee.”

This argument seems fine enough, if not a little misguided, except for the treatment of the phrase “life partner” and the comparison of a homosexual’s life partner to a “long time roommate of a nonhomosexual employee.” First, the quotation marks around the phrase “life partner” imply that Scalia thinks little of the term, or does not believe it to be true. (Cf. his other usages of quotation marks, as in the sentence “If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.”) The treatment of a homosexual’s long-term loved one as little more than a badly made argument or fictitious relationship is in poor taste, and shows a clear anti-homosexual bias on Scalia’s part. Second, the comparison of a homosexual’s life partner to a nonhomosexual’s “long-time roommate” displays either willful ignorance or, again, strongly anti-homosexual opinions on Scalia’s part. There is a clear difference in meaning between the phrases “life partner” and “long-time roommate;” Scalia is a learned man and an intelligent judicial scholar who knows better than to use such a poorly constructed and extremely biased line of reasoning.

After this paragraph, Scalia seems to return to “Justiceland” for a time and makes rational, constitution-based arguments that I personally do not agree with but could be conceivable. Unfortunately, his prejudice returns in Part II of the dissent with his extremesly eyebrow-raising use of quotation marks in the following sentence:

“But assuming that, in Amendment 2, a person of homosexual “orientation” is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision.”

Once again, by framing the word “orientation” in quotation marks in the same manner that he framed the phrases “life partner” and “equal protection,” Scalia makes it clear to his readers that he believes the concept of sexual orientation to be phony and unfounded.

This kind of sarcasm and irreverence is widely recognized as Scalia’s trademark style, and when used with abstract judicial concepts (e.g. his “equal protection” quote from his dissent; it could also work with phrases such as “federalism” or “Comity Clause,” etc.), it seems he is writing in his usual manner. When applied to the actual lives of actual homosexual people, though, the quotation marks and sarcasm come off less as Scalia-esque and more as severely offensive. I understand that Justice Scalia does not support gay marriage (or, most probably, gay rights in general), and every person is entitled to his or her own beliefs. When writing an official dissent for the Supreme Court of the United States, though, a modicum of respect is called for. Treating one’s sexual orientation or life partner as a fictitious, laughable concept rather than an actual part of someone’s life is discriminatory and questionable at best, hateful at worst, and roundly unprofessional when you are a Supreme Court Justice. The point of a dissent is not to spew your personal creed all over the opinion; it is to disagree with the decision and offer up an alternative in a respectful and constitutionally-based manner.

In light of Scalia’s Romer dissent, I have a hard time reading Carpenter’s article with anything less than a skeptical eye. There is indeed a possibility that Scalia’s words in his Lawrence dissent open up a door to new judicial analysis and thought regarding gay rights and specifically Prop. 8’s marriage band. It is extremely difficult, however, to think for even a second that this interpretation is at all what Scalia had in mind. As seen in Romer, he is visibly biased against the homosexual community (which, though it pains me to say so, is allowed in the privacy of his own home, just not in a Supreme Court dissent), and does not view same-sex marriage as a legitimate concept, much less a constitutional right that deserves to be protected. Unless Carpenter has some insight into Scalia’s psyche, and, specifically, his thoughts on Lawrence, I find it hard to believe that Scalia and/or his words will be championing homosexuality any time in the near future.