February 17, 2016 at 2:39 pm EST | by Kevin Naff
Relieved that Scalia can no longer judge us
Scalia, gay news, Washington Blade

(Washington Blade editorial cartoon by Ranslem)

Although it’s true that you shouldn’t speak ill of the dead, it’s difficult to assess the record of Supreme Court Justice Antonin Scalia without getting angry. Especially if you’re gay.

The social media spectacle over the weekend of some liberal gays celebrating Scalia’s death, while being shamed by their more conservative (and tasteful) friends highlighted this problem.

We can find sympathy for Scalia’s family and friends — a group that included Ruth Bader Ginsburg — while feeling relieved that Scalia is no longer in a position to sit in harsh judgment of our lives and love. It’s hard to blame those who found some relief in Scalia’s death, given his glee in disparaging gays. There has been a lot of misguided praise for Scalia since his death.

Let’s be clear: If Scalia had his way, not only would gay couples not be legally marrying, we’d also lack basic anti-discrimination protections. In 1996, in his dissent in Romer v. Evans, Scalia described Colorado’s law that sought to kill anti-discrimination protections as a, “modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority.”

His dissent in Lawrence v. Texas, which overturned sodomy laws, likened gay sex to incest and bestiality, among other ills the public could justifiably exert its “moral disapproval” to ban.

And in his dissent in the Obergefell case that ended bans on same-sex marriage, Scalia saw a threat to democracy itself. “I write separately to call attention to this Court’s threat to American democracy,” Scalia began his screed.

He continued, “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

So much for protecting the minority from the tyranny of the majority.

Scalia is closely identified with the concept of “originalism,” or the view that the Constitution’s meaning is locked as of the time it was adopted. This notion, of course, ignores the amendment process and the Ninth Amendment entirely, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This concept also constrains justices who might adapt to new times, technologies and concepts that would have been totally foreign to the Founding Fathers. It’s a restrictive view that put Scalia at odds with liberals and some conservatives alike during his 29 years on the high court.

What’s even more distasteful than the social media celebrations of Scalia’s death are the assertions by Republicans like Sens. Mitch McConnell and Ted Cruz that the GOP will oppose ANY replacement put forth by President Obama, per his constitutional duty. Let’s hope the Republicans have miscalculated on this craven plan and in blocking a moderate Obama appointee are faced with the prospect of President Hillary Clinton getting the pick — with a Democratic Senate to advise and consent.

There can be no doubt that the GOP has lost its way. There must be a reckoning — the mindless lunatics of the Tea Party must be cut loose so the remaining sensible voices can reshape a GOP for a modern era. The anti-intellectualism endorsed by George W. Bush, Sarah Palin and others has predictably led the party to where it is today: The brink of nominating a racist, washed-up reality TV star as its candidate for president.

Obama should teach them one final lesson and cram the most liberal nominee he can find down the throats of these treasonous Republicans.

Kevin Naff is editor of the Washington Blade. Reach him at knaff@washblade.com.

Kevin Naff is the editor and a co-owner of the Washington Blade, the nation’s oldest and most acclaimed LGBT news publication, founded in 1969.

  • It’s good you point out the historical mindset and judgments from Scalia on our issues. It only illustrates the fact that the GOP want to replace him with someone similar if not worse.

    It’s nice to think that the GOP will give Obama’s nominee a fair chance but they’ve already pledge to oppose anyone he puts forth expecting to capture the White House in November. It should be particularly alarming that the leading GOP contenders in particular Cruz and Rubio are very clear in opposing our freedom and equality.

    Assuming the American public will give Hillary and the Dems a clean sweep win due to GOP obstructions over Obama’s nomination to fill the vacancy left by Scalia sounds rather naïve given that historically what is at stake with the SCOTUS has had little if any impact in swaying elections.
    It should however galvanize GLBT voters to make sure a Democrat does get elected. Not only because the seat Scalia has vacated is at stake but also because it’s likely there will be other vacancies under the new Presidency. Ruth Bader Ginsburg has been ill in the past. Scalia has proven that the unexpected can occur at anytime.

    Since most of the freedoms and protections we enjoy today have been the result of judicial rulings rather than legislative ones, we should be very concerned about at least preserving the status quo on the court and prevent it from tiling further to the right. Remember, most conservatives on the court ruled against marriage equality. That leaves the ruling vulnerable.

    Is it far fetched? Sodomy was found to have no constitutional protection by a more conservative court in 1986 only to be reversed 17 years later as decided incorrectly. Take nothing for granted! Doing so can cost your dearly.

    Sadly Justice Kennedy, our champion, will not be there forever and we never know what we can get in his place. Remember Thurgood Marshall was replaced by Clearance Thomas!

    • It’s nice to see an intelligent, well-written response to this story rather than the rants I’ve seen all week across the gay media. Having said that, I simply can’t resist one small snipe. Echoing what Bette Davis said when Joan Crawford died, “Mother always said to speak good of the dead. Scalia is dead.Good.”

  • Correct me if I’m wrong, but since The Advocate (which I no longer read) was founded in 1967 doesn’t that make it the oldest gay news magazine in this country?

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