Scalia was high on the LGBT community’s list of enemies. Nonetheless, you can miss your enemies, even if you are grateful that they can no longer do you more harm. Here are five reasons why we’re going to miss Antonin Scalia.
He never hid his homophobia. Scalia never bothered to cloak his homophobia in polite language. Not for him the wishy-washy language of politicians asking for respect for both sides. Scalia happily discussed “the so-called homosexual agenda.” He wondered aloud “If we cannot have moral feelings against homosexuality, can we have it against murder?” He defended the “many Americans [who] do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.” No wonder his fellow dissenters in last year’s marriage ruling issued opinions separate from his. You never had to ask where you stood with Scalia. He was refreshingly candid. You always knew he hated you.
He paved the way for marriage equality. Ironically, one of Scalia’s final legacies was providing the legal argument in favor of marriage equality. The justice had been predicting that marriage equality was inevitable as far back as the 2003 Supreme Court decision striking down sodomy laws. “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision,” Scalia predicted. But it was his dissent in the 2013 Supreme Court ruling that really helped the cause he despised. The first ruling punted on whether marriage was a national right. Scalia excoriated the majority for not reaching the logical conclusion that it was. No doubt to his dismay, Scalia’s dissent was cited by federal judges striking down state bans on marriage, building on the momentum that made marriage an inevitable right.
He showed how far we’ve come. If you weren’t around at the time of Scalia’s appointment to the bench 30 years ago, you probably don’t realize just how much Scalia’s rhetoric was common then. The kind of broad condemnation of anything LGBT that made it easy to paint Scalia as an extremist in the 2010s was all too common in the 1980s. His appointment came the year that the Supreme Court upheld states’ right to criminalize gay sex. The AIDS epidemic was escalating, and with it hysteria against people with AIDS. Gay activism was still in its early stages, with ACT UP still not formed. A lot changed in three decades, but Scalia did not. What would have been perfectly acceptable when he was appointed is now considered by the majority of Americans to be bigotry. As such, he’s a handy marker against which to measure social progress.
Occasionally he was even right. Never on an LGBT issue, of course. But there are a few decisions that Scalia made that actually advanced individual rights. He supported the rights of protesters to burn the American flag, although he called the main figure in the case “a bearded weirdo.” He wrote the majority opinion in a landmark case that provided First Amendment protection to the makers of violent video games. He vehemently objected to the rights of states to collect DNA from suspects without their consent. Those decisions don’t make Scalia any less a doctrinaire conservative. But they are a reminder that every once in a great while, he could be on the right side of the argument.
He was entertaining. No matter how much you disagreed with Scalia, you have to give him credit for an in-your-face kind of entertainment. When he disagreed with a majority opinion, particularly on LGBT issues, his head would explode in a display of written pyrotechnics that lit up the sky for miles around. Even when you disagreed with Scalia, you had to acknowledge that he had a brilliant knack of taking the arcane details of the law and rendering them into vivid language that made it come alive. No other Supreme Court justice would label his colleagues’ opinions “legal argle-bargle” or “the mystical aphorisms of the fortune cookie.” It was a sight to behold. And let’s not forget that obscene gesture he made to a reporter on the steps of a church. You won’t see Ruth Bader Ginsburg doing that.
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