February 13, 2015 at 11:56 am EDT | by Lou Chibbaro Jr.
‘Don’t paint me as anti-gay,’ says Scalia
Antonin Scalia, gay news, Washington Blade

‘Don’t paint me as anti-gay or anti-abortion or anything else,’ said U.S. Supreme Court Justice Antonin Scalia. (Photo by Stephen Masker; courtesy Wikimedia Commons)

U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia discussed their views on gay rights before an audience of more than 1,400 people at George Washington University’s Lisner Auditorium Thursday night.

During a 90-minute forum moderated by Nina Totenberg, legal correspondent for National Public Radio, the two justices, among other things, said they are good personal friends and socialize together with their respective families despite the fact they disagree on nearly all of the legal issues that come before the high court.

The event was sponsored and organized by the Smithsonian Associates, an educational and membership arm of the Smithsonian Institution’s museums program.

Scalia’s reputation as the Supreme Court’s most conservative member and Ginsburg’s record as one of its most liberal justices surfaced at the event when Totenberg asked them to weigh in on why the court “has become more and more open to protecting the rights of gay people under the Constitution.”

Ginsburg voted with the court’s majority in its 2013 landmark decision overturning the anti-gay Defense of Marriage Act and separate ruling that proponents of California’s Proposition 8, which banned gay marriage in that state, lacked standing to defend the ban. Scalia dissented in the DOMA case, saying the court overstepped its bounds by handing down a ruling that he said was not supported by the Constitution.

But in a rare development, he sided with Ginsburg in the Prop 8 ruling, which sent the case back to the 9th Circuit U.S. Court of Appeals. That court, which overturned Prop 8 in an earlier ruling, removed its stay on the earlier ruling shortly after the Supreme Court’s action, clearing the way for same-sex marriages to resume in California.

“My own view of it is that people who once hid what they were have announced to the world this is who I am,” Ginsburg said in reflecting on what she called a societal change that led to the court’s pro-gay rulings.

“And we looked to see who they are,” she said of gay people. “They turned out to be our next door neighbor of whom we’re very fond. They turned out to be our child’s best friend – perhaps even our child,” she said. “I think that accounts for the very swift change.”

Scalia didn’t dispute Ginsburg’s assertion that society was changing but questioned the appropriateness of the Supreme Court to rule on marriage equality and other equality-related issues.

“The issue of gay rights, on abortion, on many of the issues in which Ruth’s opinions and mine differ does not pertain to the substance,” he said. “It doesn’t pertain to whether gay people ought to have those rights or whether there ought to be a constitutional right or a right to an abortion,” he said.

“That isn’t the issue. The issue is who decides,” Scalia told the gathering. “That’s all. I don’t have any public views on any of those things. The point is who decides? Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?” he asked.

“But don’t paint me as anti-gay or anti-abortion or anything else,” he added. “All I’m doing on the Supreme Court is opining about who should decide.”

Ginsburg then added, “It isn’t the Supreme Court that is deciding for the whole society like an imperial ruler. There hasn’t been any major change in which there wasn’t a groundswell among the people before the Supreme Court put its stamp of approval on the inclusion in the equality concept of people who were once left out,” she said.

Among those attending the event were marriage equality activists Kris Perry and Sandy Stier, the lesbian couple who became plaintiffs in the landmark case known as Hollingsworth v. Perry, in which the Supreme Court ruled that proponents lacked standing to defend the measure, leading to it being overturned.

“I thought the distinction Scalia made about his interest in ruling on who gets to decide versus the substance of any matter was an interesting point,” Perry said after the forum.

“I thought Ruth Bader Ginsburg particularly did a great job talking about how the Constitution needs to reflect the times and the people and that ‘we the people’ is a group of people that is actually evolving,” Stier said.

“We felt in the course of our experience going to the Supreme Court and getting the rights of marriage in California that we became recognized when we had that right,” said Stier. “And so I could really relate to what she said – that there was a time when the people didn’t include people of color, it didn’t include women and it didn’t include gay people.”

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

13 Comments
  • Justice Scalia …… I have no intention nor wish to paint you as anti gay.
    Your history of statements and comments have already done that with multiple coats….
    I just sit back in awe of your artwork. :)

  • Scalia didn't dissent in Prop 8. He voted with the majority which included Ginsburg and ultimately led to Prop 8 being overturned. You might want to correct that.

  • Too late, Nino! You did that yourself. Your ugly dissent in Lawrence v. Texas was just the beginning. You pal around with anti-gay bigots. You've made your position clear over the years. Why the sudden back-pedaling? Are worried about your legacy in the history books? That would be unlike you, I would think.

  • Scalia, nobody is falling for that nonsense. You're a bigot. Own it.

  • "The issue is who decides"? really jackass? then how about you let the people who want to get gay-married or have abortions decide?

  • I'm not buying Scalia's argument., and neither would anyone with a brain. The great thing about the separation of powers in the Constitution is that "we the people" have access to the judiciary when we feel we have been treated unjustly. Same-sex marriage was not an issue in the 18th century. Neither was slavery or women's rights. Scalia isn't stupid. He understands this.. he's just being disingenuous, or, as I would put it – a Grade-A Anti-Gay Asshole, .

  • I'm not an attorney, but I thought the Supreme Court punted on Prop 8 saying that the proponents of Prop 8 did not have standing to appeal the district court's invalidation of Prop 8. I think that was a given. His vitriolic dissent striking down a portion of DOMA reveals his true character.

  • Scalia may or not be homophobic, but he's certainly a judicial hypocrite. He says that he believes it's up to the people to decide because it's not in the constitution. But then, he votes to overturn the Voting Rights Act even though it's not in the constitution and is supported by Congress and the people.

  • Can someone ask the justice dept. the below questions?

    SODOMY: MEDICALLY DANGEROUS BEHAVIOR?
    Why not have a public dialogue on the medical safety of Sodomy, gay and straight, and ask these two simple medical questions?

    That is, Doesn't the medical community recommend that you, "Wash your hands after you go to the bathroom."?

    Yet, now there are some in the medical community that now say it's OK to "Sleep with the waste that gets flushed down in the toilet?" and that it's possible to live a perfectly normal life.

    Additionally, the same can be said that there are some in the medical community that now say it's OK to "Lick the toilet bowl" and that it's also possible to live a perfectly normal life.

  • So, your objection is to particular sexual practices then, not sexual orientation? Roughly a third of gay men don't have anal sex. Lots of straight people do, and the number is growing. So how would your objections work in practice, or be incorporated into marriage laws? Should people need to swear they would never engage in anal sex do get married? Or are you saying that only lesbians should get married? Then again, most sexual practices can transmit a variety of diseases. Why single out that particular risk? So, frankly, it seems to me that you have an obsession with it, not a coherent argument.

  • "The point is who decides? Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?” he asked."
    The U.S. Constitution is updated with amendments to evolve with our civilization as we learn. The LGBTs kept quiet in fear of retribution from the straights who were imposing their views on the whole country. Fortunately most people are learning about LGBTs and are supporting marriage equality, an equal, civil right for all Americans.
    Justice Scalia, you need to learn about our current civilization and who we are now. Otherwise, you should not be making decisions based on outdated information. Wise up!

  • Many gay men and I imagine most lesbians don't engage in anal sex, while not a few heterosexuals do engage in anal sex. Don't base your animus against LGBT people based on what you THINK they do in private, because in many cases you might well be wrong.

  • Cher Boncontraire,
    Tu es completement débile.

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