Or as he would refer to the issue--with raw hostility, exasperation, and rather peculiar frequency--the "fundamental right of homosexual sodomy."
It is no surprise, at least to those who actually follow the Court and the positions taken by its members, that Scalia sided against gays and lesbians in every case.
Let's review the positions taken by Scalia in those cases where he wrote an opinion.
Gay Rights
Romer v. Evans (1996): the Court's majority invalidated a state law that had prohibited any local law that sought to protect gays and lesbians from discrimination. Scalia dissented and argued that the state law was a legitimate exercise of the popular disapproval of homosexuality.
In its opinion for the Court, the majority took the position that it was a violation of the constitutional guarantee of equal protection of the law to single out a group to be denied legal protection from discrimination.
Scalia disagreed, protesting that the law was a "constitutionally permissible" and "eminently reasonable" effort by the state's citizens--who are "entitled to be hostile toward homosexual conduct"--to deny protection "to those with a self-avowed tendency or desire to engage in the conduct."
Lawrence v. Texas (2003): the Court's majority invalidated a state law that criminalized "homosexual sex." Scalia dissented again and argued that the law was a legitimate expression of the state's belief that certain sexual conduct was "immoral and unacceptable."
In its opinion for the Court, the majority held that there was in fact no legitimate government interest that justified the law's (or similar "anti-sodomy" laws') intrusion into the intimate private lives of individuals.
Scalia protested that "homosexual sodomy is not a fundamental right" and, therefore, that a state may criminalize such behavior just as it may criminalize other sexual conduct it considers immoral such as "fornication, bigamy, adultery, adult incest, bestiality, and obscenity."
U.S. v. Windsor (2013): the Court's majority invalidated that part of the so-called Defense of Marriage Act (federal DOMA) that denied federal marriage benefits to legally married same-sex couples. Scalia dissented once again and argued that the law's denial of benefits was a valid defense of traditional marriage.
In its opinion for the Court, the majority held that a "bare congressional desire" for disparate treatment of "a politically unpopular group" was not a legitimate reason for denying benefits to legally married same-sex couples that are available to other legally married couples.
Scalia repeated his previous complaint that the Court's majority had "declared a constitutional right to homosexual sodomy," as well as his argument that the Constitution "let['s] the People decide" whether to "enforce traditional moral and sexual norms."
Obergefell v. Hodges (2015): the Court's majority ruled that the right to marry may not be denied to same-sex couples. Scalia dissented one more time and argued that the majority had "rob[bed] the People" of their "freedom to govern themselves" on the issue.
In its opinion for the Court, the majority took the position that the right to marry is fundamental, that personal choices concerning marriage are among the most intimate aspects of constitutionally protected liberty, and that there is no legally relevant difference between same- and opposite-sex couples with respect to these matters.
For Scalia, however, the issue of same-sex marriage was easily resolved and the majority was clearly wrong: "When the Fourteenth Amendment was ratified in 1868 [protecting 'liberty' from undue deprivation by the states], every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."
There were two additional major cases involving gay rights in which Scalia participated. In these, he voted but did not author an opinion:
Boy Scouts v. Dale (2000): the Court's majority held that a state's anti-discrimination law could not be applied to the Boy Scouts. According to the majority's opinion, the choice to exclude gays from leadership positions was constitutionally protected by "the Scouts’ freedom of expressive association."
The dissenters in that case took the position that "eliminating discrimination is a compelling state interest" that justified application of the state law.
Scalia joined the majority, siding with the Boy Scouts.
Christian Legal Society v. Martinez (2010): the Court's majority upheld a state college's decision to deny student activity funding, recognition, and other benefits to a campus organization that refused membership to all gay and lesbian students.
On the other hand, the dissenting Justices argued that the state college's application of its non-discrimination policy to the campus group violated that group's right to express its viewpoint about sexual morality.
Scalia joined the dissenters, siding with the student group.
[Disclosure: I disagree with Scalia's position in every one of those cases.
Connect the dots. Scalia always sided against gays and lesbians. He always found the competing interest or the competing argument or the competing theory to outweigh any liberty and equality rights of gays and lesbians.
So, in his view, a popular majority's disapproval of gays and lesbians was reasonable and justified laws criminalizing "homosexual sodomy." Similarly, hostility towards gays and lesbians justified denying them any legal protection from sexual orientation discrimination.
So too, according to Scalia, the enforcement of traditional moral and sexual norms justified denying marriage benefits to same-sex couples even if they were legally married. Also, the view of marriage from nearly 150 years ago sufficed, without more, to justify prohibiting same-sex marriage today.
Beyond that, Scalia supported the notion that an organization's disapproval of gays and lesbians outweighs a state law that prohibits discrimination. And a state college should be required to subsidize and recognize a student group despite the group's open discrimination against gays and lesbians.
Contrary to Scalia's positions in all these cases, my own view is that there is simply no legitimate government reason--as opposed to some individual's or majority's religious, or moral, or traditional view--to deny gays and lesbians the same liberties and equal treatment as heterosexuals. And the application of equal protection and anti-discrimination laws to rectify the historic savage discriminatory treatment and persecution of gays and lesbians more than justifies overriding the associational preferences of organizations and activities, except perhaps for those that are truly private.]
In Part 4, we'll look at Scalia's positions on issues of race.
