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Antonin Scalia, the Last Honest Judge


Antonin Scalia, as Antonin Scalia will be the first person to tell you, does not let his social conservatism affect his jurisprudence. It’s just that the equal protection 14th Amendment concerns only racial discrimination, with particular attention to “discrimination” against white people, which is why the Freedman’s Bureau was considered unconstitutional by the framers of the 14th Amendment. It is just objectively true that the 14th Amendment doesn’t forbid invidious discrimination on the basis of gender or sexual orientation. This objective truth remains true although the 14th Amendment says nothing about race. And the subsequent amendment shows that the framers could have limited the equal protection clause to racial discrimination if they choose to. And Scalia is supposed to be a “textualist.” Where was I?

Oh, yes, Scalia’s reading a “race, especially racial classifications that aren’t related to maintaining a caste system, only” qualification into the 14th Amendment does not in any way reflect his reactionary political views. Which is why he would never fill the United States Reports with specious and offensive analogies about gays and lesbians.

And, actually, Millhiser is being too charitable to Scalia. Scalia didn’t actually say in his Lawrence dissent that he had “nothing against homosexuals.” Here’s the full quote:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.

He’s not saying that he has nothing against homosexuals; he’s generously allowing that he has nothing against homosexuals participating in the political process.* And note for the second time in his dissent he alludes to the “homosexual…agenda,” which as everyone but Ann Althouse understands in itself ends any question about whether Scalia is a homophobe, since nobody who supports gay and lesbian rights uses the phrase “homosexual agenda.” Have you ever seen Scalia refer to the “evangelical Christian agenda” in his Establishment Clause opinions? And of course this affects his jurisprudence.

*Great point by Joe in comments: Scalia does, in fact, have something against homosexuals participating in the political process, given his support for constitutional amendments prohibiting homosexuals from participating in the political process and all.

…Adam has more.

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