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Antonin Scalia: Not Neutral on LBGT Rights

[ 88 ] December 11, 2012 |

Ann Althouse is trying to defend Antonin Scalia as not being motivated by an opposition to gay and lesbian rights in the jurisprudence that consistently disfavors their interests. David Savage characterizes Scalia (correctly) as arguing that the law “can and should enforce moral standards.” According to Althouse, this is something ” Scalia directly tells us he is not saying.” She cites a passage from Scalia’s Lawrence dissent arguing that he has nothing against homosexuals using the political process, which has nothing to do with the question of whether Scalia thinks that legislatures should enforce morality (he doeesn’t in that passage, after all, say that he favors these legal changes.) He does, however, address the question elsewhere in his Lawrence dissent, in the worst slippery slope argument ever:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

Unless you think that Scalia thinks that bigamy should be legalized, I think it’s pretty clear that he thinks that should enforce morality. And, actually, I don’t think he’s wrong about that; bans on murder have a moral basis and that’s OK. The question is whether laws that discriminate against gays and lesbians are the kind of morality that states can enforce consistently with the 14th Amendment. Althouse implies what she has directly asserted before — that Scalia is merely engaging in formal legal reasoning that does not reflect any bias towards gays and lesbians at all. This implication, however, is difficult to sustain in light of other language in his Lawrence dissent:

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.

Just a tip: people who talk about the “homosexual agenda” are not actually neutral on the question of gay and lesbian rights; they oppose them. Or consider this from Romer:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm’” homosexu­als, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

[...]

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. 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.

First of all, Althouse’s central claim here is now only sustainable if you think Scalia is indifferent on the question of whether states should criminalize murder. And, second, Scalia is clearly a social conservative opposed to gay and lesbian rights, to argue that this is irrelevant to his 14th Amendment jurisprudence — which certainly can’t be explained by any neutral grand theory — is absurd.

Comments (88)

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  1. Joe says:

    The question is whether laws that discriminate against gays and lesbians are the kind of morality that states can enforce consistently with the 14th Amendment.

    This is an important point. The basic idea is that it has to be a “public” form of morality (the argument can be framed differently) as compared to a “private” form that invades protected rights or is carried out in a way that is merely invidious discrimination. Some loosely say all “moral” laws fall here, but that requires missing the forest for a single tree.

  2. Joe says:

    Judges shouldn’t be taken a pure neutral arbitrators generally speaking. Considering Scalia that way is patently silly. I wouldn’t consider Reinhardt that way either, so it isn’t ideological as such.

  3. N__B says:

    I’m sure I’m revealing abysmal legal ignorance as well as TMI, but there are/were state laws against masturbation? In privacy?

  4. S_noe says:

    Scalia said this on Monday: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
    What scares me more than the anti-gay stuff in his little argument is that he seems to be implying that our laws against murder are solely justified by the same kind of received, mostly religion-based morality that justifies anti-sodomy laws – that if that particular Commandment hadn’t made the cut, we’d all be killing each other, and there wouldn’t be any issues with that.

    • Murc says:

      If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?

      Sure you can, Tony, but your moral objections aren’t the basis of either the law or of sound public policy.

      I honestly don’t get why Scalia doesn’t admit what is a perfectly defensible proposition; that both laws and jurisprudence proceed from practical and moral, as well as formalistic, assumptions, and judges take all those things into account when crafting rulings. A good judge will combine legal formalism in the form of a consistently-applied rubric with his own sense of what is practical, moral, and (yes) politically possible.

      I often think conservatives misunderstand liberals problems with justices like Scalia, Thomas, and Alito. It’s not just that they have constitutional visions we disagree with; we can respect that even if we think they’re wrong. What sticks in our craw is the way they pretend they’re upholders of cool, detached, non-judgmental jurisprudence while simultaneously ignoring their own professed values to get to desired policy outcomes.

      If you want to cloak yourself in the mantle of legal formalism, great; that’s a perfectly cromulent way of being a judge. But it means you’d damn well better be occasionally handing down decisions that you personally find repugnant because the legal rubric you profess to follow demands it. Otherwise you’re just making shit up as you go along but trying to be high-minded about it.

      • Hanspeter says:

        But it means you’d damn well better be occasionally handing down decisions that you personally find repugnant

        That can’t happen, because the optimal legal condition is (by pure coincidence) a perfect match to Scalia’s moral beliefs.

      • RedSquareBear says:

        Here, have a +1.

      • MAJeff says:

        If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?

        Homosexuality is equivalent to murder. The ideology of the sperm embodied in Scalia.

    • “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

      How about, “If we can’t have moral feelings against miscegenation, can we have it against murder?”

      Um…yes? Yes, we are allowed to find some thing immoral but not other things?

      • Malaclypse says:

        Alternatively, of course the withered little bigot can have moral feelings against homosexuality, or miscegenation. But the 14th Amendment means he can’t write those feelings into law.

        • DrDick says:

          I think that the First Amendment has something to say about that as well. I wonder how he would feel about laws banning the eating of pork or wearing of blended fabrics?

    • “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

      You can have moral feelings about sandals over socks if you like. It’s as grave a threat to the stability of society as homosexuality.

      • cpinva says:

        well, yeah, actually:

        “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

        the last time i checked, homosexuality doesn’t, by definition, deprive anyone else of their life, which is why murder is illegal. murder is also immoral, but that isn’t why it’s illegal. it really isn’t the job of government to enforce “morality”, because then we run into the issue of who gets to define “immoral”? much better to stick with the rules provided by the constitution, which make no mention of god or morality, when establishing secular laws.

        justice scalia also posits that the constitution is “dead, dead, dead!”. he never explains how the amendment process factors into its deadness. maybe that’s for another speech and book?

    • Blad says:

      All laws are reflection of the common morality. So, yes, the only thing that makes murder illegal is our moral distaste for it. Just as our belief that a righteous murder, one done in self-defense, is not morally distasteful.

  5. mpowell says:

    This argument really does rest on the evolving medical and social understanding of what it means to be gay. I think for a person like Scalia it is probably actually confusing as to why people can’t see that polygamy, animal cruelty and same sex marriage are all so similar.

    Polygamy is the most interesting comparison since bestiality at least carries some consent issues. Why can the state ban certain voluntary arrangements among consenting adults, but not others? It really does come down to social facts about those arrangements. Being gay is not really a choice and it is also the case that same sex marriage is a perfectly fine and healthy institution, both for the couple involved and the rest of society. Additionally, it is a substantial restriction on the health and happiness of gay men and women to deny them same sex marriage privileges. These are the kinds of social facts that SCOTUS may decide are not something that a state legislature can decide to disagree with. And the social facts surrounding polygamy are much different.

    But it really does come down to an understanding of the social facts. For Scalia, he is probably still living in a mental world where homosexuality is obviously abhorent, or at least one where such a claim is a defensible proposition.

    This is also why any form of originalism is so dumb, of course, but that’s a discussion for another day.

    • Sly says:

      Polygamy is the most interesting comparison since bestiality at least carries some consent issues. Why can the state ban certain voluntary arrangements among consenting adults, but not others?

      Efficiency is the first factor that comes to mind.

      Civil marriage is essentially an expedient; it confers a host of legal rights and obligations just by entering into the agreement. Federal and state benefits, tax status, rights to a shared estate, parental rights over biological and adopted children, power of attorney in some circumstances, spousal privileges in criminal and civil proceedings, etc. The list goes on and on.

      By marrying someone, you are designating them and them alone to have those rights and responsibilities. Polygamy would throw a monkey wrench into all sorts of legal proceedings by introducing multiple spouses who, without some additional legal framework, could compete with one another over the exercise of those rights and responsibilities.

      It’s not the most air-tight argument in the world, but it would likely qualify as a legitimate government interest under rational basis review. As per Romer, discrimination purely for the sake of discrimination does not.

      • Anonymous says:

        There is also a legitimate public policy issue in the fact that polygamy is unbalanced as a practical matter – it is nearly always one man with multiple wives. Which then creates an excess of men who cannot find any wives at all. It’s already a real problem in existing polygamous communities. Obviously, if it were legalized, it’s unlikely to be a statistically significant problem across the entire population, but it’s still probably not something the government should be encouraging.

        • Hogan says:

          it is nearly always one man with multiple wives.

          Strictly speaking, it’s always one man with multiple wives. The other thing is polyandry.

          • Malaclypse says:

            Nope. Strictly speaking, polyandry is, as you say, one wife multiple husbands. But polygyny is one husband multiple wives, while polygamy includes both terms.

          • Anonymous says:

            Pretty sure polygamy is, by definition, multiple spouses of either gender. Multiple wives is polygyny.

            • DrDick says:

              As the house cultural anthropologist, let me say you are correct and there is an even rarer form called polygynandry, or group marriage. Here there are multiple husbands and wives. Other than Western utopian communes, it is only found in parts of the Indian Himalayas, south India, and Sri Lanka.

              • Njorl says:

                There are group marriages and there are marriage webs.

                There was a guy posting here some time ago who had a wife, and he and his wife together had a wife. That confused me.

  6. Andrew says:

    This may be overly reductive, but is there any law with a purely moral basis (i.e., you can defend murder laws, or even prostitution laws, on any number of more practical levels) that is, in practice, a good law? This is a serious question, and I’d love to hear some suggestions of what such a law is/would be.

    • dan says:

      Anti-discrimination laws. Just don’t tell Rand Paul.

      • Andrew says:

        Yeah, but those laws also have a very real basis in economics and political order.

        • dan says:

          I suspect that any law I, or you, think to be good can be defended on some other basis than a mere reference to morality because most morality has a basis in something — respect for individuals, equality, efficiency, economics, political order, whatever. I suspect that Scalia, if he wanted to defend laws against masturbation, could probably come up with some basis other than a “purely moral” one to defend it. Anti-masturbation laws promote early marriage and procreation an thus the expansion of the species.

          • cpinva says:

            except, of course,

            Anti-masturbation laws promote early marriage and procreation an thus the expansion of the species.

            it really isn’t the government’s job to be promoting any of those things, that would be the job of the individual members of society. while morality surely plays a role in many of our laws, if that’s the only basis for the law, it’s probably unconstitutional.

        • mpowell says:

          What the hell do you mean by political order? The reason discrimination is illegal is that it is immoral. There may be economic justifications either way, but that’s not actually relevant. Maybe we should actually say: unjust. That’s the word we use to describe something that is wrong for the state to allow for ethical reasons while morality is usually something used to describe personal conduct.

          • Andrew says:

            Ok, so I put it in a bit of a silly way. But the general point is that legal discrimination is a problem way beyond a moral (or justice) level (which it obviously also is) – it severely hinders economic development and it creates a great potential for violence and unrest. I get the point that even seemingly morality based laws all can have some kind of non-moral justification, but I think such justifications are way more present in, say, anti-discrimination laws than in laws banning pre-marital sex or masturbation.

          • Andrew says:

            Also, while it was more of a mechanism to pass them than anything else, there is a reason why many of the Civil Rights bills of the 60s were legally justified under the Commerce Clause.

          • S_noe says:

            A lot of people use “moral” to denote “religion” (and its handmaiden squickiness) and “ethics” to denote “based on some version of utilitarian evaluation of harm caused”. Since the usage, like all usage, is contested, it’s the foundation for a lot of misunderstanding.

            For instance, I get what you’re saying about anti-discrimination legislation being a moral issue – that shit offends you and me, and ought to offend everyone – but you can make harm-based arguments against discrimination of all kinds; harder to make them against gay behavior.

          • cpinva says:

            wrong:

            The reason discrimination is illegal is that it is immoral.

            the reason it’s illegal is because it deprives people of rights, for no other reason than their skin color/gender/sexual orientation. it’s also immoral, but that isn’t why it’s illegal.

      • DrDick says:

        Discrimination is not merely a moral issue. Indeed it is about the institution causing material harm to those discriminated against same sex marriage inflicts no harm on anyone.

    • Anonymous says:

      Sunday alcohol bans?

      • Anonymous says:

        Though thinking about it, I guess it depends on what you mean by “good law” (I personally don’t think they’re good law, but I think Sunday alcohol bans are still allowed, aren’t they?).

        • Andrew says:

          Sorry, when I said “good law” I didn’t mean: still in force. I meant, reasonable or just, which is obviously purely subjective. Yes, Sunday alcohol bans are still in place and yes, I think they are stupid.

          • DrDick says:

            Agreed. Same with blue laws and other Sunday closing laws.

            • cpinva says:

              these haven’t been legal since the early 70′s, they were struck down by the warren court.

              Agreed. Same with blue laws and other Sunday closing laws.

              the reason i remember this, is because it was a case brought against the commonwealth of va, which had enforced “Blue Laws” since the colonial period. it was a drug store chain that filed suit, on interstate commerce grounds, over va’s sunday business hours restrictions.

              • MAJeff says:

                But MA didn’t allow Sunday sales until it was approved by ballot initiative in 2008 (same year they decriminalized marijuana possession). They’re still illegal in Minnesota. North Dakota won’t allow businesses to open before noon on Sundays. (Strangest experience for me was trying to go shopping on a Sunday morning, and even Wal-Mart was closed.)

        • witless chum says:

          They shouldn’t be, though. Seems like the Establishment Clause decisions would argue that you’d have to ban alcohol sales on other religion’s special day of the week, not just Christianity’s.

    • DrDick says:

      No. The primary basis for making something illegal is that it harms someone. Nothing else matters.

    • Njorl says:

      I think animal cruelty laws come close. There are practical reasons for deterring animal cruelty, but I don’t think they are the primary reasons for the laws.

  7. sharculese says:

    So basically, Scalia isn’t a homophobe because his dissent in Lawrence isn’t as strikingly unhinged as Burger’s concurrence in in Bowers.

    Huh. That is creative.

    • Murc says:

      A conversation at work yesterday. This is not paraphrased: this is verbatim.

      “I’m not a homophobe. I just really, really don’t want anyone doing anything gay in front of me. That’s not homophobia.”

      “That is the dictionary definition of homophobia.”

      • greylocks says:

        Racists define racism to exclude themselves. Sexists define sexism to exclude themselves.

        You can see where I’m heading here…

        • greylocks says:

          To follow up, back when I had my own blog, some idiot posted that he couldn’t possibly be a racist because he was opposed to housing discrimination.

          That was his entire argument.

        • nixnutz says:

          You can see where I’m heading here…

          Focusing on other people’s faults can help us to deny our own?

          That formulation was intended to include all of us, yes?

      • mpowell says:

        I think that’s simply a case of being confused by the difference between homophobia and being prejudiced against gay people. They frequently go together, but technically they are not the same thing.

        • Fraxin says:

          Is homophobia in that technical sense ever practically, usefully, distinguished from prejudice though? Has it ever been anything besides a pseudoscientific gloss on bigotry?

          • S_noe says:

            I was trying to come up with some libertarian “dude, that’s disgusting, but it’s cool” argument, and failed. So, probably not?

          • Njorl says:

            Bringing bigotry into the discussion confuses things further.

            If you experience misgivings from reasonable displays of affection by homosexuals, but recognize that this represents a flaw in yourself, not others, then you are prejudiced, not bigoted.

            • ajay says:

              If you experience misgivings from reasonable displays of affection by homosexuals, but recognize that this represents a flaw in yourself, not others, then you are prejudiced, not bigoted.

              I suppose you could almost defend it as a matter of taste: I don’t hate Michael Bublé, I certainly don’t want to use the force of law to abolish Michael Bublé, I just don’t want him singing his easy-listening swing classics anywhere I can hear him.

          • Hob says:

            No. There isn’t really a “technical sense”– the term wasn’t coined for medical usage, like claustrophobia, but as a description of social/political behavior. It’s analogous to xenophobia, which in regular usage clearly means “irrationally disliking foreigners/immigrants”, not “being frightened whenever you see strangers.”

            • UserGoogol says:

              Well, there’s a difference between irrational dislike and irrational hated. If you go “eew, gay people” then you dislike homosexuality, but you don’t hate homosexuality. People go eew at all sorts of things (sometimes rationally, sometimes not) without rising to the level of full blown antipathy towards those things.

  8. Epicurus says:

    Expecting genuine legal reasoning from Outhouse or Scalia is madness. Both of them should be disbarred, in my not-so-humble opinion. Both are a complete embarrassment to the legal profession.

  9. Andy says:

    So I pull out my handy pocket version of the Constitution and I’m looking for the part where it states that some folks ideas of preserving “traditional” morality (and preserving the “family” and protecting the “traditional” institutuon of marriage) automatically trumps 14th Amendment Equal Protection guarantees.

    I thought these conservatives were all about the strict construction and original intent of the Constitution. The framers *could* have put in language elevating traditional matters of morality and family and marriage to a superior level than all other rights and guarantees – but they didn’t. Yet these guys always act as if such matters automatically trump what is actually in the Constitution. Hypocrites.

    • NonyNony says:

      You don’t understand.

      By “strict construction” they mean “it don’t say nothing in there ’bout ho-mo-SEX-you-als, so they aren’t covered”.

      And by “original intent” they mean “the Founders only like the things I want them to have liked, and hated all of the things that I want them to have hated.”

      They’re another kind of Fundamentalist. Instead of the Bible and Jesus it’s “strict construction” and “original intent”.

      • DrDick says:

        What folks like Scalia really mean is that the Framers originally intended to strictly construct the Constitution to mirror my prejudices.

    • BigHank53 says:

      Originalism is all about finding outs that let you* ignore the New Testament, or anything else that looks like an impediments to whatever it was you** wanted to do in the first place.

      *You are a land-owning white male, right?
      **No, seriously: rich white men only.

    • Joe says:

      The “original intent” isn’t going to be in your handy pocket version Justice Black (Prof. Akhil Amar is doing this bit now too — see his appearances on Up with Chris Hayes) … it also is not the same as “strict construction.” The very looseness of the thing is very helpful here.

  10. John says:

    I’ve always been a bit confused by what Scalia means by:

    The Court has mistaken a Kulturkampf for a fit of spite.

    What he appears to be saying is that the court thinks that Texas’s anti-sodomy law is arises from a fit of spite when it is actually part of a Kulturkampf.

    But I don’t get the analogy at all. The Kulturkampf was a political campaign by the Bismarckian Prussian state against the Catholic Church. I would think that Scalia, as a devout Catholic, would think the Kulturkampf was a bad thing.

    Is Texas the Prussian government here, or is it the Catholic Church? Given that the Kulturkampf was a policy of anti-Catholic discrimination pursued by the Prussian government, it doesn’t make very much sense to say that the Catholic Church was conducting a “Kulturkampf.”

    So what the (devoutly Catholic) Scalia seems to be saying is that the Court has mistakenly believed that Texas has enacted its anti-sodomy laws in a fit of pique, but that in fact they are part of a cultural struggle by the Texas state government against homosexuality, analogous to the Prussian state government’s Kulturkampf against the Catholic Church in the 1870s? And that this distinction shows that the anti-sodomy laws are fine (and that, implicitly, Bismarck’s anti-Catholic policies were also fine)? Is that right? Is that what he’s saying?

    It just doesn’t make any sense to me that anyone, much less a religious Catholic, could believe that making a comparison of a policy to the Kulturkampf would make it more acceptable.

    And if Scalia isn’t referring to the actual historical Kulturkampf, but just to its literal meaning of “cultural struggle,” why the hell is he using the German?

    • John says:

      Sorry, substitute “Colorado’s anti-gay discrimination” for “Texas’s anti-sodomy law” – I had thought the phrase was from Lawrence rather than Romer.

    • Scott Lemieux says:

      Yes, that’s really a great moment in self-refutation.

    • S_noe says:

      And if Scalia isn’t referring to the actual historical Kulturkampf, but just to its literal meaning of “cultural struggle,” why the hell is he using the German?

      ‘Cause he’s so smart, silly!

    • cpinva says:

      are you, by chance, an economist? i ask, because you make an assumption, having no actual basis in fact:

      It just doesn’t make any sense to me that anyone, much less a religious Catholic, could believe that making a comparison of a policy to the Kulturkampf would make it more acceptable.

      And if Scalia isn’t referring to the actual historical Kulturkampf, but just to its literal meaning of “cultural struggle,” why the hell is he using the German?

      you assume that justice scalia actually has a clue what he’s talking about. there has been preciouse little indication of that, in all his time on the court, what makes anyone think he would start now?

      further, i would venture that he’s a “half-devout” catholic: only adhering to those portions of the official dogma that happen to support his personal predjudices. he really has no use for all that “love/help the poor”, weak-kneed liberal crap in the new testament.

      • John says:

        I’d say that, in general, there probably aren’t many not Germanophones who are familiar with the term “Kulturkampf” but have never heard its actual specific historical meaning. The fact that Scalia is a very well-educated 76 year old American Catholic would suggest even more strongly that he would have some familiarity with the specific meaning, since an American version of the Kulturkampf was something American Catholics used to worry about.

  11. sharculese says:

    Scalia is part of a long tradition of ‘thinking man’s shitheads’ who tries to dress up their visceral contempt for their fellow man in language that sounds erudite. Why Althouse would try to write that out of his biography is what puzzles me, because I was under the impression that that was the fucking appeal of people like Tony Scalia.

  12. Peter Hovde says:

    The specter of the Homosexual Agenda was apparently so disturbing to Scalia in Romer that he lost the ability to read straightforward statutory language-he claimed that the Colorado law left different sexual orientations formally equal, while in fact it banned claims of discrimination based on homosexual orientation, but *not* heterosexual orientation.

  13. simple mind says:

    I’m glad raised the question of worldview, in this case social conservatism, which all the arch-Catholic probably share and hence were appointed: Scalia, Alito, Thomas, Kennedy and Roberts (as opposed to Weddings and Funerals Catholics such as Sotomayor). The sheer subversise cynicism of the presidents who appointed them appalls me.

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