Supreme Court Justice Antonin Scalia has again treated us to his “textualist” reading of the Constitution, telling an American Enterprise Institute audience that unfettered abortion access, “homosexual sodomy” and the retiring of the death penalty are all “easy” to decide against.
“The death penalty? It’s easy. Give me a break. It’s easy. Abortion? Absolutely easy,” Scalia told the AEI faithful.
“Nobody ever thought the Constitution prevented restrictions on abortion,” Scalia added. “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”
Scalia’s mantra is that the Constitution is not to be treated as a living, breathing document whose promise of Liberty evolves with its people, but rather an iron-clad relic that should be read as it was set down, and in only that way.
This illuminating talk from Scalia comes as several marriage equality cases stand ready to be taken up by the Supreme Court, a number that will directly challenge the federal law that bans the government from recognizing same-sex marriages, the Defense of Marriage Act.
Another case on the Supreme Court’s docket in the coming months, likely after the November elections it would now seem, will be the Proposition 8 case where a federal judge and the 9th Circuit Court of Appeals decided that the voting majority of California violated state and federal guarantees of equal protection in 2008 by defining away the right to marry a same-sex partner.
Scalia, a Reagan appointee, has sat on the bench for much of the life of the gay rights struggle. He has consistently found cause to rule against gay rights. Most notably, Scalia dissented in Lawrence v. Texas, the case that would serve to eventually make unenforceable state level bans on sodomy.
In the dissent Scalia, while terming the sodomy ban “facially neutral” even though the Texas ban applied solely to homosexual acts, wrote:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.
While this may give us a rather face-slapping clue as to Scalia’s overall opinion of gay rights, the case may be of particular interest in that, with his dissent, Scalia found room to criticize the Court’s majority for its concern over the criminalization of sodomy leading to discrimination, citing that this ignored the will of the people:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.
Proposition 8′s defenders have harped, seemingly to play a tune to which a conservative judiciary might hum, that the voting people of California, through the democratic process, decided against gay marriage and therefore the will of the people should stand — this of course sidesteps the fact that minority rights will nearly always and by their nature find disfavor at a majority poll.
While Scalia’s approach to law, his “textualist” attitude, seems to give him easy answers on topics like abortion restriction and, to quote again “homosexual sodomy,” one can’t help but feel that a judge who knows how he will rule before he has heard the individual cases at hand might be going in with a level of bias that is, to say the least, concerning.
However, for those of us familiar with Scalia’s views on a variety of topics, none perhaps more eyebrow-raising than his refrain that sex discrimination is Constitutionally sound, Scalia’s latest volley against reason and equality, and his apparent admission that being a Supreme Court justice is “easy” when it comes to issues like these, will not be a surprise.
Equal rights proponents were never looking to Scalia for affirmation, but then Scalia’s celebrity has already been cemented among religious conservatives, legislators like Scott Brown, and Republican presidential nominee Mitt Romney who has said he would be looking to appoint similarly minded judges.
Scalia’s latest AEI talk serves, then, as a healthy reminder of what that would mean for America.
Image credit: Stephen Masker