Antonin Scalia asks “What is discrimination?”


Supreme Court Justice Antonin Scalia presented a puzzle to media analysts and legal scholars this week: he has been the dissenting opinion on virtually every judicial gay rights victory of the 21st century, but he still insists that he harbors no ill-will toward the LGBT community.

Some readers are still scratching their heads over his October 8 interview in New York Magazine in which the vocally conservative jurist discussed his Catholic faith, his views on the Constitution, and his belief in the devil with reporter Jennifer Senior.

He also addressed his reputation as the highest court’s mostly openly anti-gay fixture. “I’m not a hater of homosexuals at all. It’s Catholic teaching that it’s wrong, okay. But I don’t hate the people that engage in it,” Scalia told Senior.

Scalia’s formal opinions in prominent gay rights cases (almost always dissenting) are peppered with potentially inflammatory comments. In 1996’s Romer vs Evans, the case that established the legal right to classify gays as a protected group, Scalia argued against such protections by writing, “It is our moral heritage that one should not hate any class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals.”

In Lawrence vs Texas, the 2003 case that did away with most state sodomy laws, Scalia defended bans on gay sex by pointing out that “states continue to prosecute all sorts of crimes by adults in matters pertaining to sex: prostitution, adult incest, adultery, obscenity, and child pornography.”

And when arguing against the court’s right to even rule on the Defense Of Marriage Act this year, Scalia said, “As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. There are many perfectly valid rationales for this legislation. Their existence ought to be the end of this case.”

He’s also referred to lifelong gay partners as “little more than longtime roommates” and during oral arguments in Lawrence vs Texas called them “flagpole sitters.”

And yet, despite his past inflammatory comments, he still denied having homophobic views during his interview with Senior on September 26.

“I have friends that I know, or very much suspect, are homosexual,” Scalia said, though he added that none have come out to him.

The only blip on his record on LGBT rulings also came this year when Scalia joined the majority in Hollingsworth vs Perry, the case challenging the constitutionality of California’s ban on same-sex marriage, a decision that more or less gave the green light to marriage equality in the state. But the justices’ legal opinion was not that gay couples had any constitutional right to marry but rather that, since California officials had declined to defend the state’s own law in court, the case was a dud and didn’t warrant a hearing.

Scalia’s most telling comment this week came not when talking LGBT rights but instead when discussing legal protections for women with Senior. Scalia insisted, “The issue is not whether [the Constitution]prohibits discrimination. Of course it does. The issue is, what is discrimination?”

What indeed?


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