Barney Frank is all wrong on Scalia's dissent/Frank need not explain calling Scalia homophobic/Iowa and Marriage

Barney Frank is all wrong on Scalia's dissent
By Ann Althouse
Copyright © 2009, Chicago Tribune
April 7, 2009
http://www.chicagotribune.com/news/chi-oped0407gayapr07,0,3951559.story


Rep. Barney Frank (D-Mass.) says that U.S. Supreme Court Justice Antonin Scalia is a "homophobe" who "makes it very clear that he's angry, frankly, about the existence of gay people." Frank points to Scalia's dissenting opinion in Lawrence vs. Texas—a case that struck down a statute criminalizing homosexual sodomy—and accuses the justice of thinking that "it's a good idea for two consenting adults who happen to be gay to be locked up because he is so disapproving of gay people."

But Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down.

Now, it is true that Scalia wrote a cutting dissent in Lawrence.

Scalia didn't expand his opinion with a statement of sympathy for the gay men he would have let the state imprison. But his sharp words were not aimed at those men. Scalia made a righteous show of his dedication to a method of constitutional interpretation, following the original meaning of the constitutional text. In this analysis, any infusion of the judge's personal values is nothing but an illicit power grab.

Make no mistake: Scalia's scathing words were aimed at his colleagues on the Supreme Court. He mocks them for adopting the "law profession's anti-anti-homosexual culture." They've "taken sides in the culture war," Scalia said, instead of dutifully accepting the criminal statute that emerged from the democratic process in the state of Texas.

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia wrote, refraining from saying anything about whether he wanted to see them prevail. He merely said that—because the state may base its laws on morality—gay people will have to fight for what they want in politics, not the courts.

It is common for justices to soften the blow of a harsh decision by letting us know that they don't like the particular law they are forced to uphold. Indeed, in Lawrence, Justice Clarence Thomas wrote separately to say that he thought the law criminalizing homosexual sodomy was an "uncommonly silly" one that he would vote against if he were a legislator. Barney Frank would like us to see Thomas' statement as proof of Scalia's homophobia.

It is nothing of the sort. Scalia is resisting telling us about his personal views because they are irrelevant to the work of a judge, and he's modeling upstanding judicial behavior, saying what the law is and nothing more.

Frank quotes a second gay-rights case—Romer vs. Evans—in which Scalia, dissenting, wrote that the people of Colorado are "entitled to be hostile" and to use law to express their "moral disapproval of homosexual conduct." He didn't pad that statement with a comforting civics lesson like: I myself am not hostile, but my personal opinion is not relevant in the least. It is not for me to tsk over the mean-spiritedness of Coloradoans, but only to say when they have violated a constitutional right.

You may think it's cruel of Scalia to deprive us of soothing words, but don't be tricked about why he writes like that. Scalia is adhering to the most basic legal proposition that judges must decide cases according to the law and leave the rest to the processes of democracy.

If Frank's accusations inflamed you, think hard about why Frank chose to portray Scalia the way he did. I suspect Frank would like to soften us up for future judicial nominations. Back in 2007, Barack Obama told us about "the criteria by which I'm going to be selecting my judges": "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled or old."

If Obama delivers nominees who've demonstrated their heart and empathy by reaching outcomes that accord with liberal political preferences, will liberals forget that we need to test the soundness of their legal reasoning? If Frank succeeds in getting people to believe that judicial opinions are the kind wishes of good hearts, we will rubber-stamp these seemingly good people.

If we do that, we will have forgotten what law is, and our rights will depend on the continued beneficence of the judges we've empowered.

Ann Althouse is a professor at the University of Wisconsin Law School.





Frank need not explain calling Scalia homophobic
by Rev. Irene Monroe
Copyright by The Windy City Times
2009-04-08
http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.php?AID=20874


When Democratic U.S. Rep. Barney Frank called Supreme Court Justice Antonin Scalia a “homophobe,” criticizing his likely support of the Defense of Marriage Act, his remarks were wrongly taken as only a personal attack on Scalia.

But Frank's remark was an accurate statement about the present-day climate and culture in our country's highest judicial body, where Scalia is an important and influential voice—the U.S. Supreme Court.

“At some point, [ the Defense of Marriage Act ] is going to have to go to the United States Supreme Court,” Frank stated. “I wouldn't want it to go to the United States Supreme Court now because that homophobe Antonin Scalia has got too many votes on this current court.”

In spite of the fact that President Obama is an advocate for our rights, Frank foresees the legal challenges before us.

And given the overwhelmingly conservative composition of the Court, thanks to the anti-gay legacy of the Bush administration, Scalia is the prism through which we can see the Court denying gay civil rights.

For example, in the 2003 landmark Supreme Court case “Lawrence v. Texas” that struck down the nation's sodomy laws between consenting adults, a law that especially targeted gay men, Scalia, not surprisingly, was one of the dissenting voices.

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. “

With Scalia's dissenting tone on queer civil rights comes not only an homophobic attitude toward LGBTQ Americans, but also an animus toward us simply because we exist that Barney Frank aptly points out.

Scalia's animus toward us is rooted in his adherence to a philosophy of Natural Law that states there are unchangeable laws of nature which govern us, and that our laws and institutions should try to align with this natural law. These legal opinions Barney Frank state “makes it very clear that he's angry, frankly, about the existence of gay people.”

In the 1996 Colorado case that ruled against an amendment to the state constitution, which would have prevented municipal governments from taking action, to protect LGBTQ Americans from discrimination, Scalia, a dissenting voice, of course, to the ruling defended his position by stating the following:

“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. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional.”

Scalia's nomination to the Court in 1986 came under President Ronald Reagan, a president who, at best, was ambivalent about gay rights and who, at worst, was indifferent to our rights. And it signaled the beginning of a hostile time for LGBTQ Americans.

Reagan who saw the first signs of the AIDS epidemic in 1981, his first year in office, did nothing. Why? Because Reagan used his theological view on the AIDS epidemic to influenced the laissez-faire attitude his administration exhibited, stating, “Maybe the Lord brought down the plague because illicit sex is against the Ten Commandments.”

Scalia, a devout Catholic, also allows his religious views to shape his judicial decisions. And the theology of St. Paul, who forms Christian's negative opinions about homosexuality, governs Scalia's action.

“This is not the Old Testament, I emphasize, but St. Paul.... [ T ] he core of his message is that government—derives its moral authority from God...We are a religious people, whose institutions presuppose a Supreme Being.... All this, helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer, “ Scalia stated at an address he delivered at the University of Chicago Divinity School in 2002.

For Scalia, LGBTQ Americans are evildoers creating “a massive disruption of the current social order.”

Activists on both sides of the the Defense of Marriage Act will expect the U.S. Supreme Court to decide the constitutionality of state bans on same-sex marriage. And Congressman Barney Frank is on our side.

Barney Frank needed not to explain why he called Scalia a homophobe.

However, given Scalia's horrific record on gay rights he needs to explain why he is.