Thursday, January 12, 2017

Want Scalia-type Justices? Really? (Part 3: Discrimination Against Gays & Lesbians)

Let's continue considering "Scalia-type Justices--Really?"
But first, wishing all a happy and healthy 2017. I'm back from Christmas break--in Scottsdale, which I love almost as much as upstate New York--and have finished grading exams. So it's back to addressing some important issues facing the nation and this state in NYCW.

We've been considering whether self-proclaimed Scalia admirers really know and admire his actual record. In the last post, we asked whether they really know and admire his actual record on equal protection for women--he regularly voted against it, he approved older decisions that ruled against it, and he stated publicly that he didn't believe the Constitution required it.

Do self-proclaimed Scalia admirers really want President-elect Trump to appoint Justices who agree with that? That is Scalia's record. Not someone's personal view or conjecture about it.

Now let's continue.

Photo: Atlantic Wire
If Scalia's record was one of contempt for the notion of equal constitutional rights for women, it was one of outright hostility towards gay rights and any constitutional protection for gays and lesbians. (One could well extrapolate to his likely positions on LGBT rights generally, but let's stick here to the record of his that we do have.)

Scalia never supported equal protection or due process rights for gays and lesbians. More than that, he explicitly did support and approve animosity and discrimination against them.

Let's review each of the relevant cases in which Scalia participated. First, here are those cases in which he wrote an opinion:

Romer v. Evans (1996)
This case involved a Colorado law that prohibited any local law that sought to protect gays and lesbians from discrimination. The Supreme Court ruled that the state law was unconstitutional. By singling out a group to be denied legal protection, the law violated the constitutional guarantee of equal protection.
Scalia dissented.
In Scalia's view, the state law was an appropriate disapproval of homosexuality. In his own words, 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." [My emphasis added.]

Lawrence v. Texas (2003)
In this landmark gay rights case, the Court ruled that laws that made same-sex intimacy a crime were unconstitutional.The case specifically involved a Texas law that criminalized "deviate sexual intercourse," defined in part as sexual activity "with another individual of the same sex." The Court held that there was no legitimate government purpose that justified prohibiting and punishing the personal intimacy targeted by the law.
Scalia dissented.
In Scalia's view, it was perfectly permissible to make "homosexual sex" a crime. According to him, the law was a legitimate expression that such conduct is "immoral and unacceptable." He protested that "homosexual sodomy is not a fundamental right" and, therefore, that it could legitimately be made a crime just like "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." [My emphasis added.]

U.S. v. Windsor (2013)
In this case, the Court invalidated that part of the so-called Defense of Marriage Act (federal DOMA) that denied federal marriage benefits to legally married same-sex couples. The Court explained that a "bare congressional desire" to treat "a politically unpopular group" differently was not a legitimate justification for denying them benefits that are available to other legally married couples.
Scalia dissented.
In Scalia's view, DOMA was a valid defense of traditional marriage. He again complained, and claimed, that the majority had "declared a constitutional right to homosexual sodomy." Likewise, he again insisted that the Constitution "let['s] the People decide" whether or not to "enforce traditional moral and sexual norms." [My emphasis added.]

Obergefell v. Hodges (2015)
In yet another landmark gay rights case, the Court ruled that the right to marry may not be denied to same-sex couples. The Court explained that the right to marry is fundamental, that personal choices concerning marriage are part of constitutionally protected liberty, and that there is no legally relevant difference between same- and opposite-sex couples with respect to these matters.
Scalia dissented.
Scalia ridiculed the majority's "extravagant praise of liberty" that "robs the People" of  their right to pass the laws they choose. As with equal rights for women, he insisted that the issue of same-sex marriage was settled "[w]hen the Fourteenth Amendment was ratified in 1868." Although that amendment guarantees equal protection and liberty against state laws, Scalia argued that "every State limited marriage to one man and one woman" when the amendment was ratified, and because "no one doubted the constitutionality of doing so" at that time, "[t]hat resolves these cases." [My emphasis added.]

Two additional major gay rights cases deserve mention. Scalia did not author an opinion in these cases, but he did cast a vote:

Boy Scouts v. Dale (2000)
In this case, the Court held that New Jersey's anti-discrimination law--which among other classifications included sexual orientation--could not be applied to the Boy Scouts. According to the majority's opinion, the Boy Scouts' choice to exclude gays from leadership positions was an exercise of their constitutional "freedom of expressive association."
The dissenting Justices, on the other hand, argued that "eliminating discrimination is a compelling state interest" that justified enforcement of the state's law.
Not surprisingly, Scalia approved the disparate treatment of gays. He joined the majority and sided with the Boy Scouts against the state's prohibition of sexual orientation discrimination.

Christian Legal Society v. Martinez (2010)
This case involved a California state college that refused to recognize and fund a student organization that excluded all gay and lesbian students from membership. The Court upheld the college's non-discrimination policy, which it applied to all student groups, that membership must be open to all students.
The dissenting Justices, on the other hand, argued that the student group was rightfully exercising its constitutional freedom to express its view about sexual morality.
Again, not surprisingly, Scalia voted with the dissenters and, thus, as in every other case, he opposed the position for equal treatment of gays and lesbians.

Yes, in every one of these cases there were arguments and interests presented on both sides. In every case, there were precedential, historical, interpretive, and other policy and legally relevant support proffered for both sides. Indeed, that's the very reason such cases get to the Supreme Court. But in every case, no matter what the arguments or interests, Scalia adopted those against the rights of gays and lesbians.

When a state chose to prohibit local laws that protected gays and lesbians from discrimination, Scalia insisted that the Court should defer to the state's prerogative. But when states chose to actually prohibit such discrimination, he disregarded the supposed need to defer and sided against those state policies.

Regarding laws that criminalized same-sex intimacy and a law that denied government benefits to legally married same-sex-couples, he insisted that "homosexual sodomy" was not a constitutional right. But when confronted with anti-discrimination laws protecting gays and lesbians, he found fundamental rights to exclude them from the Boy Scouts and to exclude them from student organizations.

The inconsistencies in Scalia's legal positions abound. But there is one consistency that only deliberate blindness would fail to see. Scalia was utterly hostile to the protection of gays and lesbians from discrimination. In Scalia's view, such discrimination was perfectly reasonable and constitutionally justified.

To Scalia, the Constitution's guarantee of "equal protection" was to be read as "equal protection except for gays and lesbians, and [as we saw in the last post] except for women."

Once again: Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with Scalia on that? And one more question: Would you really be willing to say so when asked at a Senate confirmation hearing? I guess we shall see.

In the next post, we'll take a look at Scalia's positions on cruel and unusual punishment.