Is there anything more to be said about Justice Antonin Scalia’s sulphurous comments about homosexuality, which prompted a gutsy student at Princeton University to confront the voluble jurist this week about his rhetoric? One thing at least: Scalia’s discomfort with the idea that there is such a thing as a gay or lesbian person.
The quotations from Scalia opinions that so dismayed Princeton freshman Duncan Hosie all referred to homosexual conduct. For example, in a 1996 case the majority of the court held that voters in Colorado had exhibited “animus” toward gays by making it impossible for the state or municipalities to pass laws protecting them from discrimination. Scalia responded: “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 his dissent Scalia did refer to “homosexuals” (he assiduously avoided the word “gay” except in quoted material), but he used that term interchangeably with “those who engage in homosexual conduct.”
And what of the notion of "sexual orientation"? Scalia did acknowledge in his Colorado opinion that such a thing might exist. For example, he wrote that it was permissible for states to criminalize homosexual conduct (as it was in 1996) "surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. In the next sentence he suggests that "'homosexual-orientation' is an acceptable stand-in for homosexual conduct."
The notion that there are no homosexual people, just homosexual acts, is an ancient one. Until recently it was the attitude of the Roman Catholic Church. Scalia’s son Paul, a Catholic priest who has served as chaplain to Courage – “a spiritual support group to help those with same-sex attractions live chaste lives” – continues to resist the idea of a gay identity. He has written: “We must always distinguish the person from the attractions. Most errors in this area come from the reduction of the person to the attractions: to say, ‘A person who has homosexual attractions must be homosexual.’ This reduces the human person to the sum total of his sexual inclinations.”
In a 2005 article in the magazine First Things, Paul Scalia warned against the labeling of high school students as “gay” and even took the Vatican to task for using the term “homosexual person,” which, the younger Scalia said, “suggests that homosexual inclinations somehow determine, which is to say confine, a person’s identity.” Of course, this is a straw man; psychologists and other who speak of a gay identity don't argue that “gay” is an exhaustive description of an individual’s personality traits, only that there is more to being gay or lesbian than participation in sexual acts.
Contrast the Scalias’ approach to this passage in Justice Anthony Kennedy’s majority opinion in the 2003 case of Lawrence vs. Texas, which overturned a Texas law against same-sex sodomy. Kennedy wrote: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Some gay activists blanched at Kennedy’s use of the term “homosexual lifestyle,” but applauded his larger point: that what was at issue was the lives of gays and lesbians, not isolated sexual acts.
Scalia dissented in that case, too, arguing that Texas’ sodomy law “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."
The conventional interpretation of Scalia’s opinions in gay-rights cases is that he doesn’t like gays; but maybe the more accurate gloss is that he doesn’t believe they exist -- except when they are engaging in (or thinking about) "immoral and unacceptable" sexual acts.