Conservative Supreme Court justice Antonin Scalia, who spent decades warning the nation about the flagpole-sitting nature of homosexuality, died of natural causes on Friday at a luxury resort in Texas. He was 79.
Death is always sad. I feel bad for his family. And it’s not time to talk about politics. (Unless you’re a Republican who really wants to honor Scalia’s memory by using his death to push for a totally unheard of postponement of his replacement so it happens after Obama leaves office.)
But it might be time to memorialize the man through rounding up some of the most memorable things he ever said or wrote.
1.Homosexuality: It’s a lot like murder! Romer v. Evans challenged a Colorado amendment which banned outlawing anti-gay discrimination (I know, I have a headache, too) in 1993. Justice Scalia expressed his sympathy for the people of Colorado, who wanted nothing more than to protect themselves from gay sex like they would from murder:
The Court’s opinion contains… hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as Unamerican. . . . 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.
2. Homosexuality: it’s a lot like incest! The Supreme Court struck down a Texas ban on sodomy in 2003 in Lawrence v. Texas. Amazingly, Scalia’s murder comparison had not convinced his colleagues of the danger posed by the gays. So he tried again. Only this time, with a different analogy.
States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography
3. Homosexuality: it’s a lot like flagpole sitting! To his credit, Scalia would try, time and time again, to use the power of simile to enlighten his colleagues. Within the same dissent, he pointed out that not everything was a right just because it had once been illegal. The act he chose to use to demonstrate is a great American pastime:
Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?
4. Legalizing same-sex marriage: nothing more than ‘fortune cookie justice.’ When the Court legalized same-sex marriage in Obergefell v. Hodges in 2015, Scalia lamented that,
The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
5. Legalizing same-sex marriage: nothing more than pretentious, egomaniacal ‘fortune cookie justice.’ In the same dissent, he described the majority opinion as being,
couched in a style that is as pretentious as its content is egotistic.
6. ladies: not protected by the Constitution. Scalia didn’t limit himself to reactionary ideologies based on sexual orientation. Ironically, his bigotry embraced the diversity and equality that, he claimed, the Constitution lacked. During a 2011 interview with California Lawyer, Scalia said,
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.