Thursday, March 26, 2009

Barney Frank Explains Why He Was Perfectly Correct To Term Antonin Scalia A Homophobe


Barney makes a point

Tom Petty could have had Barney Frank in mind when he wrote his classic smash "I Won't Back Down." I'm certain it was because of Barney that Johnny Cash covered it. (Petty sued George Bush when he started using the song as a campaign theme in 2000 and actually did force him to back down. He was delighted, on the other hand, when Jim Webb and Hillary Clinton used the song in their campaigns in 2006 and 2008, respectively.) I have no idea if either Reel Big Fish or Pearl Jam had Barney in mind when they recorded versions. Barney, meanwhile, continues to live up to the song and never backs down.

Needless to say, right-wing media shills were up in arms yelling about the effrontery of calling the distinguished duck hunter such a pejorative name. Yesterday Barney was on WBZ in Boston explaining his choice of words to a hometown crowd. "What a 'homophobe' means is someone who has prejudice about gay people," Frank told WBZ radio, arguing that Scalia's judicial writing "makes it very clear that he's angry, frankly, about the existence of gay people."

He fleshed out his opinion in a statement his office sent to DWT yesterday evening:
While responding to questions from journalists about my characterization of Justice Antonin Scalia as a homophobe, I realized that the fact that I made that comment in conjunction with a potential lawsuit about the Defense of Marriage Act created some confusion as to my basis for that characterization.
My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society’s interest because homosexuality deserves to be treated with not only disapproval, but legal disability.
This comes out most clearly in his very vigorous abjection to the court’s decision to block a criminal prosecution against two men who had consensual sex in the privacy of their bedroom. And it is made very vivid in the passage in which he affirms society’s right to treat homosexuals unequally by citing other categories which deserves such treatment-- beginning with murder.
It is of course possible for reasonable people to differ over what the Constitution requires in these cases.  But the point is that Justice Scalia goes far beyond simply denying that there is a constitutional right here and makes clear his support for the discriminatory policies based on his condemnation of homosexuality. This is best illustrated by the contrast between his writing in the criminal sodomy case and that of Justice Thomas, who in disagreeing with his colleague’s view that the Constitution prohibits criminal prosecution for private consensual sex between adults, notes that he believes that the law in question is “remarkably silly” and notes that he would have voted against it if he was in a legislature. So while both Justice Thomas and Justice Scalia are in the minority upholding the right of criminal prosecution, Justice Thomas makes clear his disapproval of this as a matter of policy while Justice Scalia enthusiastically embraces it.
I have attached some of the relevant quotations from the two opinions.
[June 26, 2003]
No. 02—102
Lawrence vs. Thomas was a landmark US Supreme Court case in which the court struck down the sodomy law in Texas, which was specifically targeted against homosexuals. Justice Scalia authored the dissent, joined by Justices Rehnquist and Thomas.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the 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. 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. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. 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; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).


on writ of certiorari to the Supreme Court of Colorado
[May 20, 1996]

In Romer v. Evans, the US Supreme Court ruled against an amendment to the Colorado state constitution which would have prevented municipal governments from taking action to protect homosexuals from discrimination. Justice Scalia wrote the dissent, with Justices Rehnquist and Thomas joining.

First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. 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, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers
But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.

I'd say Barney proved his case without any loopholes for Scalia to scurry out from. He's GUILTY as charged.

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At 8:45 AM, Anonymous Anonymous said...

I disagree. Perhaps Scalia IS a "homophobe," but the excerpts cited by Frank fail to prove that contention.

I interpret Nino's position as follows: (1) The Constitution doesn't prohibit discrimination against homosexuals; and (2) it's not the proper role of the SCOTUS to weigh in moral disputes surrounding homosexuality.

As to the first point, Frank himself apparently regards that as a REASONABLE interpretation of the Constitution (albeit one he disagrees with).

As to the second point, I think Scalia is saying, in effect, "Look, people who are opposed to homosexual anti-discrimination laws, etc., represent what has historically and traditionally been the mainstream view. Right or wrong, these people are entitled to moral perspective on the issue without being demonized by the Supreme Court."

Thus, the "anger" Frank perceives is not anger toward gays, but anger toward those who would seek to have the Court -- which ought to be neutral -- takes sides in the so-called Culture Wars.

Words matter. Unless someone can cite something Scalia has said to earn him the epithet of "homophobe," it is wrong to label him as such.

At 8:47 AM, Anonymous Anonymous said...

4th paragraph should be "entitled to [insert:] their moral perspective . . . ."

At 9:21 AM, Anonymous Anonymous said...

It is time for the little catholic boy to step down form the Supreme Political Court. These two opinions alone should disqualify Antonin from the court. this is not a moral dispute. The opinions sited are unconstitutional. No ifs ands or butts.

Scalia has long been a disgrace to the court constantly voting for institutions over individuals. The constitution is about the rights of man, not the rights of some non living corporation or religious institution (no matter how many bribes they pay).

It is we the people, not we the organizational gangs. Scalia and much of the court also have never understood the simple word inalienable.

Scalia will always side with the Catholic church being raised in that repressive culture which is totally unnatural and anti human.

He looked so out of place at the inauguration in his funny hat. He looked like he was right out of the dark ages and ready for another inquisition which his faith used to delight in.

Time for this "homophobe" to go.

At 1:50 PM, Anonymous Anonymous said...

I concur with Conrad above that at best, Frank's case is not proven, but help us out - simply highlight a specific passage from Saclai that justifies this from Frank:

Scalia "also made it clear that in his view sex discrimination is not only permitted by the Constitution but *is very much in society’s interest* because homosexuality *deserves* to be treated with not only disapproval, but legal disability."

I read it as Scalia arguing that courts shouldn't get ahead of legislatures in writing laws; I don't see anything consistent with "deserve".

Tom Maguire

At 3:43 PM, Anonymous sekanblogger said...

Scalia's constitutional views defy any kind of modern views of morality. If he were a religous scholar, his only argument would be something like;
If it isn't covered or mentioned in the Bible, then it's irrelevent or even factual.

Take Scalia, throw in a couple of libertarians, add booze and need for government, they can just use the constitution to stay in the dark ages.


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