On The Bench Justice Scalia Is a Homophobe

Barney Frank is a Politico columnist and a former Democratic representative from Massachusetts.

Gay, lesbian, bisexual and transgender people won two victories in the Supreme Court today. We expected the big one: the fourth in a series of opinions by Justice Anthony Kennedy—one of the last sitting Reagan appointees—vindicating our right to legal equality. The unexpected one was smaller in public impact but also significant: Justice Antonin Scalia’s disclaimer that he is not personally troubled by the fact that we can marry each other. After a series of opinions, speeches and public comments expressing his strong disapproval of us, vigorously defending society’s right to express this attitude in discriminatory public policies, Scalia begins his characteristically vitriolic dissent by protesting that “the substance of today’s decree is not of immense personal importance to me.”

Yeah, right. This strikes me as the least sincere disavowal of homophobia I have encountered since former Majority Leader Dick Armey tried to argue that his reference to me as “Barney Fag” was just a mispronunciation of my last name. What we have here instead marks a tactical shift.


Apparently, Justice Scalia has come to realize that since public opinion in America has moved away from anti-LGBT prejudice, heavily salting his writings with a personal distaste for the idea that we should enjoy the same rights as our heterosexual brothers and sisters weakens the appeal of his legal reasoning. (Compare his angry screed in the sodomy case, essentially justifying the criminalization of private sexual conduct between consenting adults, with Justice Clarence Thomas’s terse statement that while he would have voted against the “silly” Texas statute in question, he believed it was a deeply flawed judgment that the Legislature was constitutionally permitted to make.) So in an unexplained abandonment of his vigorously anti-LGBT prior stance, Justice Scalia asks that his pronouncement that the Court’s opinion calls our democracy into question be judged not on the substantive issue, but as an expression of his view that “allow[ing] the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

The inconsistency between this dissent and several of Scalia’s prior opinions deepens my skepticism about his newfound tolerant stance. Even before reaching this, there is the question of how many people Scalia thinks were on the Court when it ordered a much further-reaching social transformation in its decisions on race—including, of course, on who could marry whom.

Second, of very contemporary relevance, is he arguing that while the elite nine should never initiate social transformations, they should be free to undo those they don’t like, even when they were the product of action by the popularly elected branches? Scalia enthusiastically voted to invalidate the key part of the transformational Voting Rights Act—only a few years after it had been readopted by large non-elite Congressional majorities. And he was about as contemptuous yesterday of Chief Justice John Roberts for his judicial restraint in declining to undo the major transformation of health care policy as he is today of Justice Kennedy's activism on behalf of equality.

This is not simply an example of ideologically-driven inconsistency, of invoking the principle of democracy undiluted to denounce the Court when it invalidates one policy on Constitutional grounds and hailing it as a defender of our basic rights when its strikes down another. In the case of same-sex marriage, the debate which Scalia praises as “American democracy at its best” was frozen until the unelected Massachusetts Supreme Judicial Court—in this case only seven “select etc” -initiated a social transformation in our state.

Only nineteen years ago, I helped lead the fight in Congress against the Defense of Marriage Act. We lost big. Every Republican but one in the House and Senate combined joined with heavy Democratic majorities in both bodies to vote yes. Only twelve senators and 67 representatives stood in opposition. I could not deny that, at the time, this accurately represented prevailing public opinion. In recognition of this, and in the interest of keeping this from being the issue that drove a deep wedge between LGBT voters and those politicians who supported us most of the time, I campaigned in 1996 for some in that category who had agreed to DOMA—including, most notably, Bill Clinton and Sen. Paul Wellstone.

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We made little progress over the next seven years in winning over public opinion or public officials. While the country was becoming less prejudiced against us in general, tens of millions who were not personally biased were being told that allowing us to marry would be socially destabilizing. The very novelty of same sex marriage made it hard to refute this, especially in the absence of any countervailing experience. Even people generally disposed to treat us fairly were resistant to a social experiment with so fundamental an institution.

Then came Chief Justice Margaret Marshall and her three brave colleagues. Same-sex marriage came to Massachusetts, and we begin to accumulate the factual ammunition that ultimately allowed us to disprove the predictions of gloom and doom, and build the support nationwide that led finally to our winning all four state referenda in 2012 and seeing national public opinion become supportive.

This did not happen automatically. Most importantly, and most difficultly, it required painful self-restraint. I argued strongly, not to everyone’s happiness, that proclaiming the right to same-sex marriage everywhere, in the absence of a strong local legal basis, would allow our opponents to enact the anti-marriage constitutional amendment George W. Bush was proposing—an amendment that Karl Rove anticipated would severely damage Democrats in 2004. I needed to be able to persuade sympathetic colleagues whose local electorates were strongly opposed to our cause that protecting our right to marry in Massachusetts had no spill-over effect in their states, allowing them to defend voting against the Bush-Rove ploy. Our ability to win nation-wide—obviously our common goal—required beginning by focusing our efforts in Massachusetts and any other specific state where we had a concrete victory. And we did. Led by the very effective Mass. Equality organization, we concentrated on defeating Mitt Romney’s crusade to become the right wing’s favorite Republican by reversing the Massachusetts decision.

When we won, I became confident that we would ultimately succeed—although as in other cases of LGBT rights, I underestimated the speed with which we would progress. Massachusetts became the solid beachhead from which we could go forward, joined shortly by New Hampshire, Iowa and a handful of others.

What is important here in refuting Scalia is not just that unelected judges started this process, but that if we had been unpersuasive in arguing that same-sex marriage enhanced our lives without in any way hurting anyone else—or their marriages—Romney’s assault on us would have prevailed. What Chief Justice Marshall and her fellow and sister patricians did would not have been sustainable if Massachusetts voters, having observed same-sex marriage in operation, agreed that it somehow injured them. This model—of a court setting down a rule which is initially unpopular but that will ultimately survive intact only if it gains public acceptance as it is applied in practice—is the justification in democratic terms for judicial intervention on behalf of minorities. Before the Massachusetts decision, we were blocked. We could not marry because the heterosexual majority believed that it would unsettle their lives, and we could not expose this as a myth until we could marry. What Scalia’s “highly unrepresentative panel” shattered in Massachusetts in 2003 was not the ultimate rule by the people, but the vicious cycle that entrapped us.

Returning to Scalia’s profession of unconcern about our marrying, while I doubt that he means it, I am very glad that he said it. In what I acknowledge is a somewhat ironic invocation of the specific words, it is an example of the guidance provided by La Rochefoucauld for analyzing arguments: “Hypocrisy is the tribute that vice pays to virtue.” When a debater unconvincingly seeks to dissociate himself from something he has long advocated, he is acknowledging that he recognizes the unpopularity of what he believes, and he is prepared to sacrifice it to win the point.

Some of those who interviewed me after this decision was announced asked me if I fear an anti-LGBT backlash in consequence. I don’t—not when the business communities in Indiana, Arkansas and Louisiana tell the bigots to keep their prejudices to themselves. And not when Antonin Scalia feels compelled to volunteer, unusual in a Supreme Court opinion in my reading, that he really isn’t bothered by us.

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