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 firstname.lastname@example.org.