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Thirteen Offensive Things Justice Scalia’s Compared To Homosexuality

By Ian Millhiser on March 25, 2013 at 9:00 am

"Thirteen Offensive Things Justice Scalia’s Compared To Homosexuality"

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Tomorrow, the Supreme Court will hear the first of two cases which could end discrimination against same-sex couples and ensure that all Americans can marry the person they love. Whatever happens in those two cases, one thing is all but certain: Justice Antonin Scalia will vote to maintain marriage discrimination, and he will spend much of this week’s oral arguments making insulting comments about LGBT Americans. Here are some of the most offensive things Scalia compared to homosexuality in his past opinions:

  • Murder, Polygamy and Cruelty to Animals: In Romer v. Evans, the Court held that Colorado could not enact a state constitutional amendment motivated solely by animus towards gay people. Scalia saw no problem with laws enacted with such a motivation — “The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as Unamerican. . . . 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.”
  • Drug Addicts and Smokers: In the same opinion, Scalia suggested that a law which relegates LGBT people to second-class status is no different than any other law “disfavoring certain conduct.” Anti-gay laws, in Scalia’s view, are no different than laws disfavoring “drug addicts, or smokers, or gun owners, or motorcyclists.” His decision to include “gun owners” on this list is somewhat ironic, considering that he would later write the Supreme Court’s opinion in District of Columbia v. Heller which held for the first time that there is an individual right to own a firearm.
  • Prostitution and Heroin Use: Dissenting in Lawrence v. Texas, Scalia rejected the idea that an outright ban on “sodomy” violates the liberties protected by the Constitution. Such a ban, “undoubtedly imposes constraints on liberty,” Scalia wrote, but “so do laws prohibiting prostitution” or “recreational use of heroin.”
  • Incest, Adultery, Obscenity and Child Pornography: Rejecting the Lawrence majority’s conclusion that private sexuality between consenting adults receives “substantial protection” under the Constitution, Scalia responded “[s]tates continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.”
  • Bestiality: Later in the same opinion, Scalia argues that gay sex can be criminalized because some people find it immoral — “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 fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”
  • Having a Roommate: For all his over the top rhetoric, Scalia’s cruelest dig on same-sex couples may be his most subtle. In a discussion about what the anti-gay Colorado amendment in Romer does and does not prohibit, Scalia suggests that the bond between two men or two women in a committed relationship is no greater than the bond between two “roommates”: “The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death benefit payments to the ‘life partner’ of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee.”

After writing all of these lines, Scalia concludes his Lawrence dissent with a plea that he is not in the least bit anti-gay. “Let me be clear,” Scalia writes, “that I have nothing against homosexuals.”

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Justiceline: March 25, 2013

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