March 28, 2009
"Homophobia" used to mean "fear of homosexuality," but it's now used to describe any overt hostility toward gays. Scalia's defenders argue that he has never actually denounced homosexuality or expressed such hostility. In fact, in his dissent in a 1996 decision striking down an anti-gay referendum in Colorado, Scalia wrote: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." Scalia says he objects to pro-gay-rights decisions for the reasons he rejects Roe vs. Wade: His colleagues are legislating from the bench.
But Frank thinks there is more to Scalia's attitude than pure constitutional scruples. The language of the justice's opinions, he said, "makes it very clear that he's angry, frankly, about the existence of gay people."
While anger is hard to prove, the opinions certainly show that Scalia has little enthusiasm for expanding gay rights. In the Colorado case, for instance, Scalia would have allowed the state to prohibit laws according gays and lesbians "protected status or [any] claim of discrimination." He called the anti-gay measure "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." Responding to the idea that the Colorado amendment reflected an "animus" toward gays, Scalia wrote: "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."
In 2003, the court struck down a Texas law criminalizing same-sex sodomy. In his dissent, Scalia noted that the court "has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."
How Scalia feels about gays and lesbians is not just an academic question. The courts are increasingly emerging as the arbiters of the gay-marriage dispute, and we suspect it won't be too long before the issue reaches the high court. With passages like these in the law books, Frank has reason to be concerned, and he didn't need to call Scalia a homophobe to make his point.
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