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Video: Frank talk vs. laughably fallible reasoning

by Jeremy Hooper

Regardless of where you stand on gay rights, you may think that Barney Frank was out of line to call Justice Antonin Scalia a "homophobe." You may also think that the congressman didn't go far enough. But can anyone, on either side of the "culture war" fence seriously say with a straight face that the label -- which, obviously, has come in modern America lexicon to mean an aversion to gay people and gay rights -- is without validity?

Yes, the anti-gay side can and they will. The "lacking validity" claim is the exact one that recent Focus on the Family hire Tim Goeglein (a former Bush "culture warrior" who was forced to step down in a plagiarizing scandal) makes in the first few minutes of this newly posted video:

Now, we could respond to this "no evidence" claim. But there's no really need, as Barney has ably done so himself:

While responding to questions from journalists about my characterization of Justice Antonin Scalia as a homophobe, I realized that the fact that I made that comment in conjunction with a potential lawsuit about the Defense of Marriage Act created some confusion as to my basis for that characterization.

My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society’s interest because homosexuality deserves to be treated with not only disapproval, but legal disability.

This comes out most clearly in his very vigorous abjection to the court’s decision to block a criminal prosecution against two men who had consensual sex in the privacy of their bedroom. And it is made very vivid in the passage in which he affirms society’s right to treat homosexuals unequally by citing other categories which deserves such treatment – beginning with murder.

It is of course possible for reasonable people to differ over what the Constitution requires in these cases. But the point is that Justice Scalia goes far beyond simply denying that there is a constitutional right here and makes clear his support for the discriminatory policies based on his condemnation of homosexuality. This is best illustrated by the contrast between his writing in the criminal sodomy case and that of Justice Thomas, who in disagreeing with his colleague’s view that the Constitution prohibits criminal prosecution for private consensual sex between adults, notes that he believes that the law in question is “remarkably silly” and notes that he would have voted against it if he was in a legislature. So while both Justice Thomas and Justice Scalia are in the minority upholding the right of criminal prosecution, Justice Thomas makes clear his disapproval of this as a matter of policy while Justice Scalia enthusiastically embraces it.

I have attached some of the relevant quotations from the two opinions.


Look, we don't care if you call Antonin Scalia "strawberry sundae." The label is just whatever. But the fact remains that the man stood against the decriminalization of homosexuality, has quite fully (and cruelly?) shown how he views gay lives and loves, and defended the right to show animus against someone on the basis of their sexual orientation. These rulings may or may not make him a "homophobe" -- but they absolutely puts him at odds with any gay person who is seeking a more peaceful, queer-accepting world.

**Oh, and Ashley, to address your 2:05-ish point: Our thoughts (and presumably the media's) would be 100% the same if a conservative had made this statement. Or actually, we would be more delighted, since it would mean that a conservative was speaking out against anti-gay discrimination. Because you see, while your side might view "homophobia/homophobe" as general attack words (further evidenced by Stuart's "or a statement like this" followup), what the terms are really "attacking" are bias -- something that people of all stripes rightfully do ALL THE TIME, without incident! It's just that when it applies to gay people, you all act like there is no premium placed on the pro- and anti- stances. That is the great fallacy of your side's arguments: The inability to see that anti-gay bias is as nasty as all of the other kinds of discrimination, demonization, and persecution that we as a society have come to see as negatives!

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Your thoughts

Is morphemophobia a word?

Posted by: Dick Mills | Mar 27, 2009 4:04:15 PM

This is progress. They used to think that being called a homophobe was a good thing.

Posted by: RainbowPhoenix | Mar 27, 2009 4:29:07 PM

Hmmm. Now is the week to interview Meghan McCain.

Posted by: LOrionL | Mar 27, 2009 5:03:07 PM

Actually, he makes one good point. Even though there's evidence to support the charge, Barney was disrespectful to the Supreme Court.
But that was nothing compared to the contempt in the 90s poured on the office of the Presidency.
They called Bill a rapist, drug dealer, murderer, and plenty of other names. The confederacy has always hated the federal system. What they did then was a little something called bearing false witness, also known as lying about someone on the public record. It's a Commandment, of course, which doesn't mean zip to fundamentalists. So their outrage over Barnard's rudeness rings a bit hollow.

Posted by: Wilberforce | Mar 27, 2009 10:31:16 PM

Elephant in the room break:

Has my gaydar been infected with a virus or is Tim the gayest thing since Pope Benedict?

Posted by: Seadog | Mar 28, 2009 6:01:13 AM

Could there be a connection between Scalia's virulent anti-gay animus and that fact that his son is a priest?

Posted by: Richard Rush | Mar 28, 2009 10:55:32 PM

Frank is absolutely right -- and within his rights -- to call Associate Justice Antonin Scalia a homophobe.

Scalia's dissents in Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003) dripped with rabid, ill-concealed contempt for gay Americans. In Romer, the Court struck down an amendment to the Colorado state constitution ("Amendment 2") that would have had the "immediate effect" of repealing all city ordinances, executive policies, and local measures protecting gay persons from discrimination at the hands of heterosexual Coloradans (whilst leaving intact the operation of these statutes in terms of protecting heterosexual persons from discrimination at the hands of gay Coloradans); Amendment 2 would have had the "ultimate effect" of restructuring the political process in the State of Colorado so that gay Coloradans, and only gay Coloradans, would never again have been able to invoke the democratic process in an attempt to secure protection from discrimination, no matter how severe or widespread the discrimination, and no matter how pernicious its impact. Gay Coloradans would have been prohibited from petitioning their own government for redress of grievances; gay Coloradans would effectively not even have been able to ASK their government, at any level (state, municipal, etc.) to pass legislation or to enact policies prohibiting discrimination on the basis of sexual orientation (while heterosexual Coloradans would still have enjoyed this right). Thus, Amendment 2 would have "fenced out" gay Coloradans and permanently excluded them from participation in the political process; they would have been (in the words of Associate Justice Anthony Kennedy )"strangers to the law".

In a strongly-worded, six to three decision, the US Supreme Court struck down Amendment 2, apparently adopting much of the analysis adduced by constitutional law professor Laurence Tribe, who submitted an amicus brief in which he argued that Amendment 2 constituted a per se violation of the Fourteenth Amendment’s Equal Protection Clause. Tribe and others pointed out that Amendment 2 was so broadly written that (under even a relatively modest interpretation of this measure) the following scenarios would all have been possible: libraries (both state and private) would have been able to refuse, selectively, to lend books to gay patrons; hospitals would have been able to refuse to treat gay patients; and police departments would have been able to refuse to investigate crimes perpetrated against gay citizens. The US Supreme Court was obliged to accept the authoritative construction of Amendment 2 articulated by the Colorado Supreme Court in litigation that took place before the case reached the US Supreme Court; under this construction, all of the above scenarios would have been constitutionally tolerable. During oral arguments, Associate Justice Sandra Day O’Connor repeatedly asked the state solicitor-general whether any measure as broad in its scope as Amendment 2 had ever been enacted in the history of the nation. Associate Justice Ruth Bader Ginsburg referred to Amendment 2 as the “thou shalt not have access” amendment. Most of the Justices were clearly very perturbed by this measure; only Associate Justice Antonin Scalia appeared comfortable with this measure.

When Romer was handed down on June 26, 1996, the Court took legal scholars by surprise. Many gay rights activists had been deeply concerned about this case, which could have enabled to Court to expand the reach of the anti-gay position adopted in Bowers v. Hardwick, 478 U.S. 186 (1986) to the realm of equal protection. The Colorado Supreme Court had struck down Amendment 2 on the basis that the measure interfered with the “fundamental right” to equal participation in the political process. The US Supreme Court affirmed, but claimed that its affirmation was based on a different rationale from that adopted by the state courts (both the District Court for the City and County of Denver and the Colorado Supreme Court had struck the measure). The US Supreme Court invoked the language of traditional rational basis review, holding that Amendment 2 was not rationally related to a legitimate state interest. This was an interesting development, in that the plaintiff almost always loses in rational basis review (the state almost always wins such cases, in which the court may reach out on its own and adduce even post-hoc justifications for the challenged statute). Some legal scholars believed that the Court had concluded that Amendment 2 was utterly irrational.

However, other scholars believed that the Court had applied a more searching standard of review than mere rational basis review, without acknowledging its own actions in this regard. These scholars pointed out the fact that the Court appeared to accept, implicitly, the equal participation analysis adopted by the Colorado Supreme Court. (“…It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”…” It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment. . . . " Civil Rights Cases, 109 U.S. at 24…We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end, but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”)

Scalia countered the majority opinion with a sneering, gratuitous attack on gay persons. He launched into a vitriolic diatribe, borrowing the German word “kampf” in his opening sentence (“The Court has mistaken a Kulturkampf for a fit of spite...."). In passages eerily reminiscent of writings all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities", where they possessed "political power much greater than their numbers, both locally and statewide". He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large," essentially asserting that the tendency on the part of gay Coloradans to invoke the democratic process more readily than their heterosexual counterparts constituted a distortion of the process itself. Since when did active involvement in the democratic process become a liability to that process? Involvement in the political process is ordinarily viewed as a civic virtue; yet implicit in Scalia’s analysis is the assumption that such involvement is a virtue only when the participants are heterosexual. One also wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of one particular group of citizens cannot, by definition, possess "disproportionate" political power unless members of other groups of citizens choose, voluntarily, to abdicate their own power. One also wonders whether Scalia would ever apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive choice for women) "much more ardently than the public at large". Scalia criticized the majority for not being neutral, despite the fact that his analytically impoverished dissent was predicated on blatantly homophobic generalizations, stereotypes, and assumptions.

Frank has even more rope with which to hang Scalia in Lawrence. Noting that the Lawrence majority could find no significant line of decisional law predicated on Bowers (which Lawrence directly and bluntly overruled), Scalia dredged up the sale of sex toys as an example of the “massive disruption of the current social order” thrust onto the constitutional landscape by Lawrence. Scalia also complained that laws against masturbation, bigamy, adult incest, and prostitution were vulnerable to constitutional attack, because the Lawrence majority had made no effort to cabin the scope of its decision. (Laws against masturbation and the sale of sex toys are open to constitutional attack! How will we manage to survive as a society in the wake of this development?)

But it is in Section V that Scalia veers into nastiness. He wrote that the Court had “signed on” to the “homosexual agenda”. It is in this section that Scalia sympathizes with persons who do not wish to do business with gay persons, with Americans who don’t want gay persons serving as scoutmasters, and with Americans who don’t want gay persons to serve as teachers. It was also in this section that Scalia sides with people who consider gay sex to be “immoral and destructive” (just how gay sex is “immoral and destructive” is, of course, never stated). It is also in this section that he berates his colleagues for their “law profession’s anti-anti-homosexual (sic) culture”. It is also in this section that Scalia apparently forgets his vote in Romer, asserting that he has “nothing against homosexuals…promoting their agenda through normal democratic means” (in Romer, he had EVERYTHING against gay persons promoting “their agenda”!).

In short, Scalia’s dissents in both Romer and Lawrence are replete with examples of naked homophobia, including comparisons of homosexuality to murder.

Frank is right. Scalia is an openly homophobic man, and he makes no effort to conceal this ugliness in his capacity as an Associate Justice sitting for the highest court in the land.


Posted by: Philip Chandler | Mar 28, 2009 11:03:43 PM

I'm going on record right now, Scalia is also an asshole. I've seen video of him questioning a petitioner. If I were to ever appear in that court and he spoke to me like he spoke to the petitioner in the case I viewed, they'd be locking me up for a long time.

Posted by: Tony P | Mar 28, 2009 11:38:30 PM

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