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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsJustice Scalia Is a Homophobe by Barney Frank
Gay, lesbian, bisexual and transgender people won two victories in the Supreme Court today. We expected the big one: the fourth in a series of opinions by Justice Anthony Kennedyone of the last sitting Reagan appointeesvindicating our right to legal equality. The unexpected one was smaller in public impact but also significant: Justice Antonin Scalias disclaimer that he is not personally troubled by the fact that we can marry each other. After a series of opinions, speeches and public comments expressing his strong disapproval of us, vigorously defending societys right to express this attitude in discriminatory public policies, Scalia begins his characteristically vitriolic dissent by protesting that the substance of todays decree is not of immense personal importance to me.
Yeah, right. This strikes me as the least sincere disavowal of homophobia I have encountered since former Majority Leader Dick Armey tried to argue that his reference to me as Barney Fag was just a mispronunciation of my last name. What we have here instead marks a tactical shift.
Apparently, Justice Scalia has come to realize that since public opinion in America has moved away from anti-LGBT prejudice, heavily salting his writings with a personal distaste for the idea that we should enjoy the same rights as our heterosexual brothers and sisters weakens the appeal of his legal reasoning. (Compare his angry screed in the sodomy case, essentially justifying the criminalization of private sexual conduct between consenting adults, with Justice Clarence Thomass terse statement that while he would have voted against the silly Texas statute in question, he believed it was a deeply flawed judgment that the Legislature was constitutionally permitted to make.) So in an unexplained abandonment of his vigorously anti-LGBT prior stance, Justice Scalia asks that his pronouncement that the Courts opinion calls our democracy into question be judged not on the substantive issue, but as an expression of his view that allow[ing] the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
The inconsistency between this dissent and several of Scalias prior opinions deepens my skepticism about his newfound tolerant stance. Even before reaching this, there is the question of how many people Scalia thinks were on the Court when it ordered a much further-reaching social transformation in its decisions on raceincluding, of course, on who could marry whom.
Second, of very contemporary relevance, is he arguing that while the elite nine should never initiate social transformations, they should be free to undo those they dont like, even when they were the product of action by the popularly elected branches? Scalia enthusiastically voted to invalidate the key part of the transformational Voting Rights Actonly a few years after it had been readopted by large non-elite Congressional majorities. And he was about as contemptuous yesterday of Chief Justice John Roberts for his judicial restraint in declining to undo the major transformation of health care policy as he is today of Justice Kennedy's activism on behalf of equality.
Read more: http://www.politico.com/magazine/story/2015/06/justice-scalia-gay-marriage-ruling-119480.html#ixzz3eDNKxqOZ
shenmue
(38,506 posts)hifiguy
(33,688 posts)and always has been.
Gothmog
(145,345 posts)His dissent in Lawrence v. Texas made that clear
Fumesucker
(45,851 posts)Sociopaths have no regard whatsoever for the social contract, but they do know how to use it to their advantage. And all in all, I am sure that if the devil existed, he would want us to feel very sorry for him.
― Martha Stout, The Sociopath Next Door
enough
(13,259 posts)His observations about how change happens are fascinating.
The last three paragraphs>
What is important here in refuting Scalia is not just that unelected judges started this process, but that if we had been unpersuasive in arguing that same-sex marriage enhanced our lives without in any way hurting anyone elseor their marriagesRomneys assault on us would have prevailed. What Chief Justice Marshall and her fellow and sister patricians did would not have been sustainable if Massachusetts voters, having observed same-sex marriage in operation, agreed that it somehow injured them. This modelof a court setting down a rule which is initially unpopular but that will ultimately survive intact only if it gains public acceptance as it is applied in practiceis the justification in democratic terms for judicial intervention on behalf of minorities. Before the Massachusetts decision, we were blocked. We could not marry because the heterosexual majority believed that it would unsettle their lives, and we could not expose this as a myth until we could marry. What Scalias highly unrepresentative panel shattered in Massachusetts in 2003 was not the ultimate rule by the people, but the vicious cycle that entrapped us.
Returning to Scalias profession of unconcern about our marrying, while I doubt that he means it, I am very glad that he said it. In what I acknowledge is a somewhat ironic invocation of the specific words, it is an example of the guidance provided by La Rochefoucauld for analyzing arguments: Hypocrisy is the tribute that vice pays to virtue. When a debater unconvincingly seeks to dissociate himself from something he has long advocated, he is acknowledging that he recognizes the unpopularity of what he believes, and he is prepared to sacrifice it to win the point.
Some of those who interviewed me after this decision was announced asked me if I fear an anti-LGBT backlash in consequence. I dontnot when the business communities in Indiana, Arkansas and Louisiana tell the bigots to keep their prejudices to themselves. And not when Antonin Scalia feels compelled to volunteer, unusual in a Supreme Court opinion in my reading, that he really isnt bothered by us.