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Justice Scalia: Religious Schools Should Have A Special Right To Anti-Gay Discrimination

By Ian Millhiser on September 26, 2011 at 3:20 pm

"Justice Scalia: Religious Schools Should Have A Special Right To Anti-Gay Discrimination"

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In a speech at the historically Catholic Duquesne University School of Law, conservative Justice Antonin Scalia urged the university not to stray from a religious identity hostile to gay and lesbian students:

“Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment — particularly moral judgment based on religious views,” Scalia said.

As examples, he cited attempts to sue a religious university in Washington, D.C., for offering only same-sex dorms and other attempts by a law school association to bar schools that discriminate against homosexuals.

I hope this place will not yield — as some Catholic institutions have — to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means,” Scalia said.

Scalia’s suggestion that there is something quintessentially Catholic about being anti-gay — a view that millions of American Catholics would no doubt find deeply offensive — is more than a little bizarre. The reality is that Catholics tend to be more supportive of gay rights than other Christian sects.

Moreover, his insistence that religious institutions enjoy a special right to discriminate against gay people is particularly troubling, and it has worked its way into his decisions on the Supreme Court. In Christian Legal Society v. Martinez, a conservative Christian student group claimed the special right to have a state university subsidize their organization even though it refused to comply with the university’s anti-discrimination policy. Scalia joined a four justice dissent that would have given anti-gay groups exactly this right.

Now, let’s be clear. All groups have a First Amendment protected right to build institutions and use those institutions to spread their viewpoint. Indeed, if an institution — whether religious or otherwise — wants to outright engage in hate speech, than that is their right under the First Amendment. But Scalia is advocating something entirely different here. He believes that anti-gay groups can demand that society as a whole support their alternative lifestyle, and he also seems to believe that religious schools have a special right to force their way into organizations that find anti-gay discrimination repugnant.

In other words, Scalia needs to understand that the First Amendment is fine with anti-gay speech — anti-gay groups just have no right to flamboyantly demand that the rest of us subsidize their behavior.

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