Rep. Barney Frank(D-Mass.) says that U.S. Supreme Court Justice Antonin Scalia is a "homophobe" who "makes it very clear that he's angry, frankly, about the existence of gay people."Frank points to Scalia's dissenting opinion in Lawrence vs. Texas- a case that struck down a statute criminalizing homosexual sodomy- and accuses the justice of thinking that "it's a good idea for two consenting adults who happen to be gay to be locked up because he is so disapproving of gay people."
The the fact is that Scalia has written no such thing. Either Frank is an incompetent reader or he is deliberately trying to mislead people into believing that justices vote for results in cases the way legislators vote a bill up or down. Or maybe both considering it is "Barney" we're speaking of.
Now, it is true that Scalia didn't expand his opinion with a statement of sympathy for gay men he would of let the state imprison.But his sharp words were not aimed at those men.Make no mistake: Scalia's words were aimed at his colleagues on the Supreme Court.He mocked them for adopting the "law profession's anti-anti homosexual culture."They've "taken sides in the culture war,"Scalia said, instead of dutifully accepting the criminal statute that emerged from the democratic process in the state of Texas."Let me be clear that i have nothing against homosexuals, or any other group,promoting their agenda through normal democratic means," he wrote.
It is common for justices to soften the blow of a harsh decision by letting us know that they don't like the particular law that they are forced to uphold.Scalia is correctly resisting telling us his personal views because they are irrelevant to the work of a judge, and he's modeling upstanding judicial behavior,saying what the law is and nothing more.
You may think it's cruel of Scalia to deprive us of soothing words, but don't be fooled about why he writes like that.Scalia is adhering to the most basic legal practice that judges must decide cases according to the law and leave the rest to the process of democracy.
In recent interview with Hoover Institution, elaborating on his earlier statement that “devotees of The Living Constitution do not seek to facilitate social change but to prevent it” (Scalia & Gutmann, 1998), Justice Scalia said:
ReplyDelete"To make things change you don’t need a constitution. The function of a Constitution is to rigidify, to ossify, NOT to facilitate change. You want change? All you need is a legislature and a ballot box. Things will change as fast as you like. My Constitution, very flexible changing. You want right to abortion? Persuade your fellow citizens that it is a good idea, and pass a law. And then you find out, the results are worst than we ever thought, you can repeal the law. That’s flexibility. The reason people want the Supreme Court to declare that abortion is a constitutional right is precisely to rigidify that right, it means it sweeps across all fifty states and it is a law now and forever or until the Supreme Court changes its mind. That’s not flexibility."
"By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all." (Scalia & Gutmann, 1998)
Source(s):
Scalia, A., & Gutmann, A. (1998). A Matter of Interpretation: Federal Courts and the Law. Princeton University Press.
Thanks for the quote from Scalia and for viewing the blog.I hope you view it frequently --SD
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