Let’s throw gay people in jail because some people don’t like them
In his dissent in Lawrence, Scalia argued that moral objections to homosexuality were sufficient justification for criminalizing gay sex. “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,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Some people think obesity is immoral and destructive—perhaps New York Mayor Michael Bloomberg should have imprisoned people who drink sugary sodas rather than trying to limit the size of their cups.
Laws banning homosexual sex are like laws banning murder
In his dissent in the 1996 case Romer v. Evans, which challenged Colorado’s ban on any local jurisdictions outlawing discrimination on the basis of sexual orientation, Scalia brought out an analogy that he’s used to attack liberals and supporters of LGBT rights for years since. “Of course it is our moral heritage that one should not hate any human being or class of human beings,” Scalia wrote, in the classicprebuttal phrasing of someone about to say something ludicrous. “But 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[.]” It’s true that people generally disapprove of murder, but there’s more going on in laws banning murder than mere disfavor—the rights of the person being murdered, for example.
…And like laws banning child pornography, incest and bestiality
Scalia decided to take the “moral disapproval” argument up a notch in his dissent inLawrence, writing that the Texas ban on homosexual sex “undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,'” like laws against “fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” Scalia later tees up “prostitution” and “child pornography” as other things he thinks are banned simply because people disapprove of them.
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
There is a poignant aspect to today’s opinion. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation and of our Court. “It is the dimension” of authority, they say, to “cal[l] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Ante, at 24.
Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
His view that the Constitution does not prohibit discrimination against women:
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.
His comments on affirmative action policies and African-Americans:
“There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school, where they do well,” he said.
“One of the [legal] briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Justice Scalia made clear he shared this view and also suggested these “lesser schools” suffered by having minority students admitted to unsuitable elite institutions.
“I’m just not impressed by the fact that the University of Texas may have fewer [black students if the admissions policy changes]. Maybe it ought to have fewer. And maybe, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less,” he added. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
and his views on the Voting Rights Act:
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
These opinions paint a picture of a conservative bigot who seeks to turn the clock back on many of the important social advances of the 20th century (there’s more too, like his agreement with the majority in the Citizens United ruling, his opposition to the Affordable Care Act, and his rejection of the right of same-sex couples to marry).
With his various dissenting opinions and political beliefs, Scalia was a polarizing figure who angered a great many people. His critics were not shy about sharing their anger for a man who fought against human rights and in support of social injustice. And why should they? Scalia was a man in a position of great power who used that power in ways that negatively impacted millions of people in the United States. So criticize away.
But there’s an attitude I’m seeing across the Internet in the wake of his passing. An attitude by people that says “if you can’t say something nice about Scalia, then don’t say anything at all”, “don’t speak ill of the dead”, and one of my “favorites” (for certain values of the word) “Now is not the time to publicly flog Supreme Court Justice Antonin Scalia“:
Much of Scalia’s public post-mortem flogging was centered on his deep opposition to same-sex marriage and LGBT equality, although he regularly instigated outrage on affirmative action, abortion and a host of other issues.
One blunt example came from the new and improved — and allegedly “20 percent nicer” — Gawker: “In the end, Scalia was a loser.” That was at least somewhat nicer than the headline from Americans Against the Tea Party(whose name pretty much says it all): “Ding dong, the witch is dead! Justice Antonin Scalia is dead.”
That’s why I applaud LGBT leaders such as Jim Obergefell, the plaintiff in the Supreme Court marriage-equality case Obergefell v. Hodges. Obergefell showed grace and his respect to Scalia, by tweeting solemnly: “Thank you for your service to our country, Justice Scalia. Condolences to your family and friends.”
Lesbian, gay, bisexual and transgender rights groups such as the Human Rights Campaign and GLAAD also made the decision not to disparage Scalia — or even to say much about him, at least for now. Seth Adam, GLAAD’s vice president of communications, emailed pointedly, “We will not be commenting at this time.”
Their restraint brought to mind the late British Prime Minister William Ewart Gladstone and his doctrine of “Right Timing,” often repeated as “Timing is everything.” Applied to Scalia’s death, it means that this is not the time for critics to tar and feather the justice. That day will come soon enough — after his burial and an official period of mourning.
The above steaming pile of horseshit is from Washington Post contributor Steven Petrow, who seems to believe there’s an appropriate time to criticize the late bigot and that time is not now. This is predicated on the existence of some sort of unstated agreement by everyone that it’s simply improper to talk ill of someone after they’ve died. Now, if we’re talking about what would be rude and uncivil to say around Scalia’s friends and family-people who are grieving-then I would agree. I wouldn’t make disparaging comments about him around the people he cares for, bc they’re mourning and it would be an asshole move to disrupt the mourning of others. Aside from that however? I don’t think people need to hide their opinions of Scalia just because he’s dead. After all, being dead doesn’t provide a magical shield from criticism. People expressed their anger and frustration with the man when he was alive. Why should they refrain from doing so after he died? Because of civility politics? Because someone, somewhere decided that you’re not supposed to speak ill of the dead? Who decided that? Why did they get to decide that? Why is everyone beholden to that rule?
In addition to Petrow’s comments, I’ve seen many people argue that by speaking ill of Scalia, we stoop to his level. That’s pure bullshit. Again, Antonin Scalia was a Supreme Court Justice, which meant he was a man who wielded a great deal of power and in exercising that power, he increased the suffering of people all across the country. Commenters expressing their disgust with his opinions, or sharing their relief that he can no longer harm anyone do not share in that power or influence. To “stoop to his level”, his critics would not only have to be bigots along multiple axes, but they’d also have to wield significant power (whether social, political, or economic). The overwhelming majority of people criticizing Scalia are online commenters who wield precious little power, which means they lack the power to cause any harm with their beliefs and opinions.
The other criticism I’ve seen are from those who think it improper to take joy in the death of another. This is probably the only complaint against Scalia’s critics that I feel has any merit and that’s bc I do think it wrong, from a Humanist position, to revel in the deaths of others. Usually. That’s not an absolute position, bc while I want to see less suffering and anguish in the world-and the family and friends of Scalia are likely experiencing anguish over his passing-his death means that he cannot cause any more harm. He can no longer use his position as an influential person with a platform to spread misery upon the population of this country.
In the end, civility advocates have nothing to fall back on but calls to treat Antonin Scalia kindly and respectfully. And yet, why should anyone do so when the man spent much of his life spreading hate and misery? And why should civility be held as more important than the anger and frustration felt by the people whom he harmed while he was alive? Me, I think civility can be-and in this case IS-overrated.
(another thing that I can’t help but notice: where were all the civility advocates when people Michael Brown, Jr, Tamir Rice, Sandra Bland, and Freddie Gray, Jr died? You couldn’t throw a rock without someone speaking ill of those deceased individuals. Surely there isn’t a double standard at work whereby black people who die are spoken ill of while white folks are not.)