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For those of us who grew up when homosexuality was a crime, the United States Supreme Court deciding to take up the Prop 8 and the Defense of Marriage Act (DOMA) cases for review is astonishing.

antonin scalia

Unfortunately, the result may be far from satisfying for those of us who are directly impacted by these cases.

In fact, Justice Antonin Scalia, who, on lgbt issues, sounds too much like a courtly educated version of Rush Limbaugh, aired his views on homosexuality while speaking at Princeton University on December 10. During the Q&A period Scalia was asked by freshman Duncan Hosie why he equates laws banning sodomy with murder, polygamy, cruelty to animals and bestiality in his dissents in cases regarding gay rights. Hosie, who identified himself as gay, said he found the comparisons offensive.

Said Hosie, "Do you think it's necessary to draw these comparisons, to use this specific language, to make the point that the Constitution doesn't protect gay rights?"

Scalia, who believes legislative bodies can ban “immoral” things, replied, “I don't think it's necessary, but I think it's effective. It's a form of argument that I thought you would have known, which is called the ‘reduction to the absurd.’ If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? Of course we can. I don't apologize for the things I raised. I'm not comparing homosexuality to murder. I'm comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I'm comparing that with respect to murder and that with respect to homosexuality.”

While some in the audience applauded Scalia, many more applauded young Hosie.

Justice Scalia, the United States does not have laws against homosexuality, there are certainly laws against murder. Being gay is not the same as being a murderer. In the eyes of the law they are not morally the same. "I thought you would have known!"

A question, Justice Scalia. Are you familiar with a 2,000-year-old common notion from the Greek mathematician Euclid which reads, “Things which are equal to the same thing are also equal to one another?” Any two people getting married are equal to any other two people getting married. Homosexuality is not a sin. Thou shall not kill is one of the ten commandments, thou shall not be gay is not.

Meanwhile, Ted Olson, one of the co-counsels who will speak before the Supreme Court on behalf of the unconstitutionality of Prop 8, has called on the Obama administration to file an amicus brief before the Supreme Court in the upcoming Prop 8 case.

While the The Department of Justice has refused to defend DOMA in court, it has never weighed in on Prop 8. “I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson said in a conference call on December 7. “And I'm quite confident that if they did participate, they would support our position in this case because the denial of equal rights is subject to close scrutiny by the courts and cannot withstand that scrutiny.”

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Richard Socarides, a former adviser to President Bill Clinton, said that "there will be pressure for the Justice Department to weigh in on the Prop 8 case. I think this federalizes the issue much more quickly than the White House would have liked and may force them to take a position earlier than they would have liked.”

President Obama became the first sitting president to announce his support for marriage equality. There’s no doubt that Americans followed Barack’s lead when he came out publicly not only for same-sex marriage, but lifted DADT (Don’t Ask, Don’t Tell) and refused to defend DOMA in court. The result of his leadership, and strong grassroots campaigns, encouraged the citizens of Maine, Maryland and Washington state to vote in favor of marriage equality and voters in Minnesota to defeat an initiative which would have banned same-sex marriage.

But at this moment, the middle of December, 2012, on the matter of the Supreme Court cases, the White House and the DOJ are silent.

However, lgbt groups are not quiet and, in fact, have already moved into high-gear with petitions to President Obama and the DOJ. Proclaims the petition from the Courage Campaign: “President Obama and the Department of Justice: Please speak out on Prop 8 as the Supreme Court prepares to hear the case. Submit a friend-of-the-court brief arguing that a state ban on same-sex marriage violates the U.S. Constitution.”

So, the waiting game begins, anew.

The next step in the review process for the LGBT cases is a scheduling order laying out the date for oral arguments at the Supreme Court. The cases will likely not be heard until the spring of 2013.

carl matthes

The Court’s term lasts until June, so final news on the fate of Proposition 8 will be known by then. If the judge’s go against the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional, couples cannot wed in California. However, the marriages of those lesbian and gay couples who were married in 2008 will remain legal.

Hmmm, another question, Justice Scalia. Do you know the word recuse?

Carl Matthes

Wednesday, 12 December 2012