Wednesday, March 27, 2013

Constitution just happens to agree with Scalia's bigotry

By Frank Moraes

Adam Serwer wrote a great article this morning, Here Are the 7 Worst Things Antonin Scalia Has Said or Written About Homosexuality. Now, we all know that Scalia is a vile human being. But after reading Serwer's list, it was clear to me what I've long suspected: Scalia is no sober justice that his position implies.

What comes through in all of these comments is that Scalia isn't against gay rights out of any legal principle; he is just against homosexuality (he's a Catholic) and thus votes against gay rights. Think: Rob Portman before his son came out of the closet. And that shows that he is no kind of judge; he is, as Dan Savage said, just a partisan hack.

In his dissent on Lawrence v. Texas, the case that found sodomy laws unconstitutional, Scalia said such laws didn't violate the right to equal protection. He wrote, "Men and women, heterosexuals and homosexuals, are all subject to [Texas'] prohibition of deviate sexual intercourse with someone of the same sex." But Serwer noted that this was a long repudiated line of reasoning:

That should sound familiar: it's the same argument defenders of bans on interracial marriage used to make, arguing that the bans were constitutional because they affected whites and blacks equally.

But that just shows why Antonin Scalia is exactly the sort of person who should not be given the power that goes with sitting on the Supreme Court. He is not even looking at the law in these cases that collide with his personal moral code. Instead, he just uses his intelligence and erudition to justify his prejudices. And that is why he will find that both Prop. 8 and the Defense of Marriage Act are constitutional. Through ever more complicated and far-fetched legal reasoning, he will find—What a surprise!—that the constitution does indeed justify his long held personal bigotry. That's a constitutional originalist for you!

(Cross-posted at Frankly Curious.)

Labels: ,

Bookmark and Share


  • Quite convenient, isn't it? If I subscribe to the philosophy of originalism, then the question of discrimination against gays is an easy one because "equal protection of the laws" means exactly the same thing today as it did back in 1868. That, of course, is absurd, but people like Scalia keep it alive and well.

    By Blogger Jeff S., J.D., at 4:31 PM  

Post a Comment

Links to this post:

Create a Link

<< Home