In an editorial for The New York Times, 7th U.S. Circuit Court of Appeals Judge Richard Posner slammed a U.S. Supreme Court justice for his views on gay rights. Posner, who co-wrote the piece with Georgia State University law professor Eric Segall, argued that Antonin Scalia’s vehement opposition to gay rights is incompatible with the Constitution.
“The Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each,” they noted.
The duo trace the justice’s ire back to 2003, when he dissented from the majority opinion in Lawrence v. Texas. That decision, of course, found that Texas’ sodomy ban violated the constitutional right to privacy.
“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,” Scalia wrote at the time.
That was merely the beginning, according to Posner and Segall. Obergefell v. Hodges is a sticking point for the justice. He “has vented even more than his usual anger” over the decision, they wrote, and asserted that the verdict “seems to obsess” him.
“Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that ‘a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,’” they wrote.
But Scalia’s own statements indicate that his objection to Obergefell may go beyond his conviction that the Supreme Court should refuse to overturn certain state laws. Posner and Segall referred to his September speech at Memphis, Tenn.-based Rhodes College. There, Scalia once again condemned the majority opinion for recognizing same-sex couples’ constitutional right to marriage.
“Saying that the Constitution requires that practice, which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that,” Scalia said.
Religion’s a recurring theme in Scalia’s remarks. Posner and Segall also cited his speech to Philadelphia’s Union League last month, where he told his audience “[T]here is no textual or historical basis for the court’s claim that laws and policies must be neutral not only between different religions, but also between religion and non-religion.”
Scalia is correct in a sense: The Supreme Court couldn’t stop the majority from restricting the rights of the minority if America functioned as a pure democracy. But it doesn’t, and it was never intended to. The Constitution guarantees certain rights to citizens and by definition, this means those rights aren’t up for a vote.
Furthermore, it is certainly the role of the Supreme Court to apply the Constitution to shifting social mores. Scalia knows this. He believes, for example, that the Warren Court ruled correctly in 1967’s Loving v. Virginia, which unanimously overturned a state statute prohibiting interracial marriage and defined marriage as “‘one of the basic civil rights of man,’ fundamental to our very existence and survival.”
But if the court had followed Scalia’s Obergefell logic, Virginia’s interracial marriage ban might’ve stood decades longer. Most Americans opposed the practice and many had religious motivations. A trial court judge even ruled that “almighty God” had meant to separate the races.
That logic even diminishes his own rulings, as Poser and Segall point out, but that still hasn’t deterred him from promoting this line of argument in repeated public forms. “The implication is that if a majority of Americans reject same-sex marriage on religious grounds, the Supreme Court must bow,” they concluded.
And that’s profoundly unconstitutional.