WASHINGTON, D.C.—Supreme Court Justice Antonin Scalia is nothing if not consistent about his claim to support a "textualist" view of the Constitution, but the fact that he believes that people who practice homosexual sodomy deserve no protection from his court only serves to remind us of the intransigence with which this justice in particular makes decisions, and the relative ease with which he would allow American citizens to once again be prosecuted for a sex act millions of Americans regularly engage in.
Most people probably want justices on the high court to be somewhat empathetic, and to take a less accusatory and more forgiving approach when confronted with cases that profoundly impact human beings in their daily lives and where there is no identifiable "victim." Sex, of course, is a perfect example of an activity that is commonly practiced and yet also at times triggers scrutiny by the government. With Scalia, however, such humanity is all but absent; despite the warm feelings his colleagues seem to have for him, he appears to possess barely-concealed contempt for any inclination on the part of fellow justices to bring a sense of historical or social evolution to the job.
Indeed, before an American Enterprise Institute (AEI) audience, reported CBS News, Scalia "contrasted his style of interpretation with that of a colleague who tries to be true to the values of the Constitution as he applies them to a changing world. This imaginary justice goes home for dinner and tells his wife what a wonderful day he had," Scalia said.
"This imaginary justice, Scalia continued, announces that it turns out 'the Constitution means exactly what I think it ought to mean.' No kidding."
In other words, the imaginary justice has no business figuring out what the Constitution ought to mean. That work was already done by the Founders. All that matters is to divine what they had in mind and you cannot go wrong.
"As he has said many times before," CBS continued, "the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect."
In the meantime, issues that for some people are difficult, for Scalia are easy.
"The death penalty? Give me a break. It's easy," he told the AEI crowd. "Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state."
Needless to say, slavery was legal for most if not all of those same 200 years, but Scalia did not add that issue to his list of easy issues. One can be quite sure, however, that if Scalia was on the bench when Dred Scott v. Sanford was being decided he would have voted with the majority and never questioned the decision.
One might also ask why it matters at all to Scalia that homosexual sodomy was "criminal in every state" for 200 years? If he believes, like he says, that a strict reading of the Constitution combined with a clear understanding of the original intent of the Founders are the only factors necessary to determine the constitutionality of a particular law or piece of legislation, why does it matter that so many states criminalized the act? The only thing that should matter is that supposedly, neither the Constitution nor the Founders indicate an exception for homosexual sodomy. Had they carved out such an exception, it would a different story according to Scalia's judicial philosophy, but they did not specifically do so.
Instead of invoking the Constitution, however, Scalia used as a justification for his support of such laws the fact that homosexual sodomy was held to be illegal in every state for centuries, as if that fact alone should sway anyone's position with respect to the criminality of such behavior. He perhaps meant to imply that had the act been unconstitutional those laws would have been struck, and the fact that they were not proves their constitutionality. This, despite the fact that it wasn't until the passage of the Fourteenth Amendment in 1868 that the Supreme Court decided that the "privileges and immunities" granted by the Constitution were at all applicable to the states!
However, in his remarks Scalia pointedly mentioned "homosexual" sodomy only, and not sodomy in general. As he likely is aware, every state and territory in the nation had anti-sodomy laws on the books well into the 20th century that applied to both straight and gay couples, though some were subsequently amended to provide exceptions for married and straight unmarried couples (there was no same-sex marriage then). Lawrence v Texas put an end to the enforcement of such laws in the United States except for some cases specific to the armed forces. But Scalia is less interested in straight sodomy than he is in gay sodomy, which is interesting considering his oft-expressed belief that justices should keep their personal opinions to themselves.
Be that as it may, in mentioning "homosexual sodomy" in public, Scalia was clearly expressing his continuing disdain for the Lawrence decision, which in his view epitomizes the type of non-textualist decision-making that he believes undermines the integrity of the court. But let's be clear about what Lawrence did, which was to correct a profoundly uneven playing field that in some states made sodomy legal for straights but still illegal for gays.
Kansas is a good example. In 1969, it was the first state in the union to amend its sodomy laws so that they would apply to homosexuals only. In the intervening years, the state's various legislatures and courts tinkered with the definition of what and who would be covered under the law—at one point excluding lesbian cunnilingus—but they always kept acts of sodomy committed by gays a criminal violation of the law. In fact, despite Lawrence, Kansas to this day insists on keeping those same-sex sodomy laws on the books.
In January 2012, Kansas Gov. Sam Brownback, a devout conservative Republican, "released a list of 51 laws to recommend to the Legislature for repeal, [but] the sodomy statute was not among them." Brownback, of course, is a strong supporter of Scalia and his judicial philosophy, as well as a consistent advocate for repressive laws that target the gay community and the adult entertainment industry. Is it a coincidence that social extremists like Brownback are supporters of the "textualist" judicial philosophy?
Obviously, the nation is in a much better place with respect to sexual freedom than it was even a few years ago, but deep strains of intolerance remain as much a part of our national psyche as they ever did, and in some ways those strains are now stronger and expressed by some more virulently because of the sexual freedoms that have been realized over the past few decades. In such an volatile environment, it's all too easy to pour fuel on those simmering resentments, which is exactly what Scalia seemed to be doing at the American Enterprise Institute.
Indeed, when a sitting justice makes a seemingly offhand remark about "homosexual sodomy" as still being criminally feasible, remarking with absolute conviction that enforcing such laws is a no-brainer, such statements are not only red meat to the religious right and others, but also a stark reminder to the left and to libertarians that this justice in particular, as well, certainly, as others currently serving on the court, believes that the clock can and should be turned back. He does not believe that criminalizing those acts is improper because if he did he would not have used "homosexual sodomy" as an example without also saying that he is personally against such laws.
This is why people who believe the Supreme Court needs to strike more of a balance than Scalia would have it do need to consider voting for Barack Obama this November, or at least someone other than Romney, who, if allowed to choose new justices, will likely want to pick another Scalia, which would be a disaster for vulnerable communities and constituencies in our country who count on the courts to protect their rights. Does anyone think, for example, that a far right court would not overturn Lawrence? Does anyone believe there are not powerful lobbies throughout the nation, many of them controlling state legislatures, that want nothing more than to shove everyone back into the closet, where they belong? After all, several Congress members have filed a "friend of the court" brief asking the Supremes to uphold the discriminatory Defense of Marriage Act (DOMA), and the Republican Party is on record in calling for a reinstitution of the discriminatory "Don't ask, don't tell" policy for gays in the military.
It isn't easy or pleasant to admit that some (or many) of our own countrymen want to repress us, but far worse is to live in denial of the fact. No one wants a Supreme Court stocked with justices who bring only their own prejudices to bear on cases, but this continuing charade by the so-called "textualists" or "originalists" on the court that they somehow are able to set aside all personal convictions in favor of a strict reading of the Founders' intent is simply too ludicrous to go unchallenged.
Worse, their claims of "original intent" are simply false. One need only read the debate around the adoption of the Ninth Amendment to understand that its purpose was to grant citizens a great many rights not specifically denied to them by the Constitution itself. Its text reads, simply, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." For a more complete discussion of this issue, check out Daniel Farber's analysis, "Retained by the People."
There's a reason why people on the far right love Scalia, Alito and Thomas, and it isn't because they are neutral on issues like homosexual sodomy or abortion. It's because they are not.
