The Animus of Antonin Scalia

“Justice Scalia, I’m gay, and as somebody who is gay I find these comparisons extraordinarily offensive,” Duncan Hosie, a freshman at Princeton, said to Antonin Scalia on Monday. In front of eight hundred other students who had come to hear the Justice speak, Hosie cited Scalia’s dissents in two crucial gay-rights cases, Romer v. Evans, from 1996 (the one in which Scalia wrote, “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….”) and Lawrence v. Texas, from 2003 (“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity…. Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.”) Hosie, who is eighteen, and was a small child when both of those cases were decided, wanted to know if Scalia, who is seventy-six, and the longest serving justice on the Supreme Court, had any second thoughts, if only about his tone.

“I think there is a fundamental difference between arguing the Constitution does not protect gay sex, which is a defensible and legitimate legal position I disagree with, and comparing gays to people who commit murder or engage in bestiality,” Hosie said. “Do you have any regret or shame for drawing these comparisons you did in your dissents?”

Scalia did not. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” he said to Hosie. “Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality.” He said that it was an argument by way of reduction to the absurd—and, since this is Scalia, he did so with a note of something between sarcasm, condescension, and stubbornness: “It’s a type of argument that I thought you would have known…. I’m surprised you aren’t persuaded.”

A few months from now, when the Supreme Court hears arguments in the two same-sex marriage cases it accepted for review last Friday, many observers will likely be in Hosie’s position—listening with some amazement to Scalia as he berates lawyers, fascinated by his animosity, wondering about the point where a cruel note removes any enjoyment one might find in intellectual theatrics. There haven’t exactly been signs that Scalia is mellowing. His dissent, this year, in an Arizona immigration-law case, was as politicized and angry as ever—and gay-rights cases do not exactly bring out his soft side. For the health-care case, we had broccoli arguments; for same-sex marriage, we will likely be coming back to bestiality.

At the same time, those listening to the arguments will hear the story of Edith Windsor, the plaintiff in one of the two cases—the one that is the best chance to overturn the Defense of Marriage Act, which withholds federal recognition of same-sex marriages that states sanction. Windsor met her wife, Thea Spyer, in 1965; she danced with her so long that, at the end of the evening, there was a hole in her stockings, as Spyer told the Times in the couple’s wedding announcement. A few years later, Spyer was diagnosed with multiple sclerosis, and Windsor eventually quit her job (as an early computer programmer at IBM) to take care of her full time. By the time the two were able to marry, in 2006, Spyer was confined to a wheelchair. When she died, Windsor was subjected to more than six hundred thousand dollars in taxes on the apartment and country house they shared—taxes that a heterosexual widow would have been spared. That injury is what gave her standing to bring the case; her commitment to her wife and her steadfastness should be humbling even for Scalia. (Admittedly, that may be optimistic.)

But there are also a couple of points in Scalia’s dissents that are worth thinking about, if only as objects of contemplation. The first is his firm belief that earlier gay-rights cases set the legal framework for same-sex marriage, and that his opponents were blind in denying that. He may have been right—if thoroughly wrong to oppose gay-rights for that reason. One recalls the scenes in “Lincoln,” in which Thaddeus Stevens restrains himself from saying what he knows and hopes will be true—that an end to slavery may lead to a broader, truer social equality. Scalia clings to hate—what he calls animus—because he’s got nothing else; what he is missing, though, is that an increasing number of Americans have found that when legal strictures and open discrimination are stripped away they are left not with the reprehensible, but with neighbors, friends, and family members whom they love, and see loving each other. Little wonder, then, that two-thirds of those under thirty support same-sex marriage.

The other point that dismayed Scalia in Lawrence, and will likely do so even more now, is the speed at which all this change has taken place. In his dissent in Lawrence, he complained about “surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick”—in which the Court upheld anti-sodomy laws. It is now a mere nine years since Lawrence. (It is also a mere forty-five years since anti-miscegenation laws were overturned in Loving v. Virginia.) That cultural transformation is undeniable. Joseph Biden credited “Will and Grace”—and the shows with fun, sympathetic gay and lesbian characters certainly played a role. But a more relevant artifact may be “Philadelphia,” the movie in which Tom Hanks played a lawyer, dying of AIDS, who was suing his firm for discrimination—or rather the years of desolation that it captured and conveyed. It was during the AIDS crisis that many people learned what it meant to be married, in terms of having the right to be in a hospital room or plan a funeral, and also how many people they knew who were touched by it. Those lessons, about the legal power of marriage and the enduring force of family ties, have been carried past those years of crisis. They have been joined by, and informed, a drive for marriage as a way to protect the rights of the children of gay parents. Both tragedy and joyfulness have been part of the metamorphosis that brought these cases before Scalia and his colleagues—dancing until there is a hole in your stockings as well as sitting by a hospital bed.

There has also been an end to lives constrained by silence. Duncan Hosie, the Daily Princetonian reported, “had come out to his family just a little over one month ago, over fall break…. He said he struggled with his orientation before coming out to his family, and he said reading Scalia’s negative comparisons while preparing his question made his struggle more difficult.” But he also seems to have had a sense of who he was, and wanted to be. According to the Daily Princetonian, “Hosie said he had gone through a few drafts of the question and read about 50 Scalia opinions in order to decide what he wanted to say.” When Scalia stood there, Hosie was ready. So is the country.

Original Article
Source: new yorker
Author: Amy Davidson