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Antonin Scalia: Not Neutral on LBGT Rights


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.

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