When Democratic U.S. Representative Barney Frank called Supreme Court Justice Antonin Scalia a “homophobe,” criticizing his likely support of the Defense of Marriage Act, his remarks were wrongly taken as only a personal attack on Scalia.
But Barney Frank’s remark was an accurate statement about the present-day climate and culture in our country’s highest judicial body, where Scalia is an important and influential voice -the U.S. Supreme Court. “At some point, [the Defense of Marriage Act] is going to have to go to the United States Supreme Court,” Frank stated. “I wouldn’t want it to go to the United States Supreme Court now because that homophobe Antonin Scalia has got too many votes on this current court.”
In spite of the fact that President Obama is an advocate for our rights, Frank foresees the legal challenges before us. And given the overwhelmingly conservative composition of the Court, thanks to the anti-gay legacy of the Bush administration, Scalia is the prism through which we can see the Court denying gay civil rights.
For example, in the 2003 landmark Supreme Court case “Lawrence v. Texas” that struck down the nation’s sodomy laws between consenting adults, a law that especially targeted gay men, Scalia, not surprisingly, was one of the dissenting voices, stating, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their businesses, 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.”
With Scalia’s dissenting tone on queer civil rights comes not only an homophobic attitude toward LGBTQ Americans, but also an animus toward us simply because we exist that Barney Frank aptly points out. Scalia’s animus toward us is rooted in his adherence to a philosophy of Natural Law that states there are unchangeable laws of nature which govern us, and that our laws and institutions should try to align with this natural law. “These legal opinions”, states Barney Frank, “make it very clear that he’s angry, frankly, about the existence of gay people.”
In the 1996 Colorado case that ruled against an amendment to the state constitution, which would have prevented municipal governments from taking action, to protect LGBTQ Americans from discrimination, Scalia, a dissenting voice, of course, to the ruling defended his position by stating the following: “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.”
Scalia’s nomination to the Court in 1986 came under President Ronald Reagan, a president who, at best, was ambivalent about gay rights and who, at worst, was indifferent to our rights. And it signaled the beginning of a hostile time for LGBTQ Americans. Reagan who saw the first signs of the AIDS epidemic in 1981, his first year in office, did nothing.
Why? Because Reagan used his theological view on the AIDS epidemic to influence the laissez-faire attitude his administration exhibited, stating, “Maybe the Lord brought down the plague because illicit sex is against the Ten Commandments.”
Scalia, a devout Catholic, also allows his religious views to shape his judicial decisions. And the theology of St. Paul, who forms Christian’s negative opinions about homosexuality, governs Scalia’s action. “This is not the Old Testament, I emphasize, but St. Paul…. [T]he core of his message is that government—derives its moral authority from God…We are a religious people, whose institutions presuppose a Supreme Being…. All this, helps explain why our people are more inclined to understand, as St. Paul did, that government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer, ” Scalia stated at an address he delivered at the University of Chicago Divinity School in 2002.
For Scalia, LGBTQ Americans are evildoers creating “a massive disruption of the current social order.” Activists on both sides of the the Defense of Marriage Act will expect the U.S. Supreme Court to decide the constitutionality of state bans on same-sex marriage. And Congressman Barney Frank is on our side. Barney Frank needed not to explain why he called Scalia a homophobe. However, given Scalia’s horrific record on gay rights he needs to explain why he is.