What Scalia Says About Gay People

As we wait for the Supreme Court decisions on marriage equality to come down in June, commentators have been dissecting the oral arguments and making predictions about the possible outcomes. But there’s one SCOTUS judge who leaves no doubt about how he will rule: Justice Antonin Scalia will undoubtedly vote against gay rights. He disapproves of homosexuality and believes that gay people are immoral. He has made his views emphatically clear, not just from the bench but also in various public forums.

Lest you doubt the extent of his “animus” (a favorite term of his, as you’ll see), we present a “greatest hits” list.

1. In Romer v. Evans, a historic decision in favor of gay civil rights, Scalia authored the dissent, issued on May 20, 1996. Here’s why he thinks it’s okay to discriminate against gay people:

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. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.

2. In Lawrence v. Texas, the landmark case that overturned an earlier Supreme Court decision and declared it unconstitutional to criminalize homosexuality, Scalia penned the dissenting opinion, issued on June 26, 2003. Here, he lashes out at the changing times, siding with those hostile to lesbians and gay men:

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.

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The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’ … the same interest furthered by criminal laws against bigamy, adultery, adult incest, bestiality, and obscenity.

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Even if Texas law does deny equal protection to ‘homosexuals as a class,’ that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

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Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

3. In this week’s Proposition 8 hearings, Scalia disregarded the findings of numerous scholarly and medical organizations, including the American Academy of Pediatrics (PDF) on the virtues of parents in same-sex committed unions.

If you redefine marriage to include same-sex couples, you must – you must permit adoption by same-sex couples, and there’s – there’s considerable disagreement among – among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not. Some States do not – do not permit adoption by same-sex couples for that reason. … I don’t think we know the answer to that. … But that’s a possible deleterious effect, isn’t it?… I take no position on whether it’s harmful or not, but it is certainly true that – that there’s no scientific answer to that question at this point in time.

While decked out in Court regalia, Justice Scalia certainly sounds professional and legalistic when he expresses such anti-gay opinions. But what about when he’s off-court, so to speak? Well, last October he told an audience at the American Enterprise Institute that some decisions are essentially no-brainers for him:

The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.

And as recently as December, when asked by Princeton first-year student Duncan Hosie about whether he regretted having characterized homosexuality as being the same as bestiality and murder in his Romer v. Evans and Lawrence v. Texas opinions, Scalia stood by his earlier positions:

If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things? … Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.

Ultimately, as even Scalia knows, he is on the wrong side of history. As many have noted, he saw the writing on the wall in 2003 when the Supreme Court ruled in Lawrence v. Texas that states cannot criminalize homosexuality. In his dissenting view, Scalia mocked the majority opinion that upheld a view of lesbians and gay men as worthy of participating in committed, loving relationships and said that the decision paved the way for an acceptance of same-sex marriage rights.

If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct… and if, as the Court coos (casting aside all pretense of neutrality), ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution.’… Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry [emphasis added].

Interestingly, the central argument that opponents of marriage equality are now making is this very idea of “responsible procreation” that Scalia derided in 2003. It remains to be seen whether he will try to mask his antipathy to lesbians and gay men by grasping at that particularly tiny fig leaf.

When the history books are written on this time of momentous progress for gay rights, Scalia will be not just on the losing side, but on the morally reprehensible one. For now, we must settle with knowing that it’s absurd for a judge in the highest court of the land to have revealed his biases so completely before deciding one of the major civil rights issues of our time.

It’s ironic to note that Scalia probably insisted on hearing the Proposition 8 case in the hope of overturning the Ninth District decision and reinstating California’s same-sex marriage ban, as an article in The New York Times contends. He’s almost certain to be disappointed, because one way or another Prop 8 is most likely going away.

While we’re waiting to see what the Court will decree, and trying to get some perspective, we can enjoy The Daily Show‘s take on Scalia from last year. Leave it to Jon Stewart to do full justice to the injustice of it all.



Photo of Antonin Scalia via Flickr user US Mission Geneva under Creative Commons 2.0


Audrey Bilger is the current president of Reed College, and previously served as vice president and dean of Pomona College. She is also a former professor of literature at Claremont McKenna College and faculty director of the Center for Writing and Public Discourse. She also teaches gender studies, and occasionally yoga. Her latest book, which she co-edited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and Marriage (Seal Press, 2012). She is also the author of Laughing Feminism, editor of an edition of Jane Collier’s 1753 satire "An Essay on the Art of Ingeniously Tormenting," and a frequent contributor to Bitch magazine. Her work has been featured in The Paris Review, Rockrgrl, the Huffington Post and the Women's Media Center.