Barney Frank’s recognition of Antonin Scalia’s contempt for gays and lesbians has gotten predictable pushback from the likes of Fox News and Ann Althouse. The latter asserts that Frank is “either lying about having read [Lawrence v. Texas], lying about what Scalia wrote, or an embarrassingly incompetent reader.” Given how tendentious Althouse’s argument is, I would pretty careful about these kinds of charges.
The most disingenuous sleight-of-hand in Althouse’s argument is to imply that the Scalia and Thomas dissents in Lawrence were making essentially the same argument. But, of course, this isn’t true. Thomas, quoting Potter Stewart’s famous line in Griswold, calls the law he has voted to uphold “uncommonly silly.” Scalia expressed no such judgment. And, indeed, presumably the argument in Thomas’s solo dissent — two short paragraphs that could have easily been put into the main dissent — wasn’t included in Scalia’s because Scalia doesn’t agree that the law is objectionable. And while Althouse is (as always) very impressed by trite assertions of judicial restraint when made by reactionary justices, Scalia doesn’t apply such values consistently, and has also been willing to ignore original meaning when it contradicts cherished policy beliefs, making it more likely than not on its face that his vote in this case is consistent with his policy views. (In this, Scalia is no different than any other judge ruling on constitutionally ambiguous issues, but that’s no reason for this kind of naivete.)
But it’s not just that; as the first link above notes, Scalia has consistently made his contempt for gay and lesbian rights clear, and his relevant dissents have hardly been narrow, technical ones. Consider, for example, one of the paragraphs preceding the one Althouse cites, which she didn’t include for obvious reasons:
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. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.
The odds that someone fulminating about “the so-called homosexual agenda” in the United States Reports isn’t hostile to gay and lesbian rights are roughly equivalent to the odds that the Prohibition Party will get 300 electoral votes in the 2012 elections. And here are some more excerpts from the dicta in his Romer dissent:
The Court has mistaken a Kulturkampf* for a fit of spite….This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality, is evil…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.
[*Reference to discriminatory, anti-Catholic policies taken by Germany under Bismarck. Why this is supposed to be a defense of Colorado’s discriminatory policy remains mysterious, but does not add much credibility to claims that Scalia is a neutral observer of the culture wars.]
Call me crazy, but unlike Althouse I do not consider spurious analogies between consensual same-sex relations and murder to be the likely output of someone with no opinion about gay and lesbian rights. Scalia’s opposition to gay and lesbian rights is plain to see, and I see no reason why Frank shouldn’t point it out.