Justice Scalia is Talking Sodomy Again
He may arguably be the U.S. Supreme Court's most conservative justice, but for a man who likes to sell folks on traditional family values, Justice Antonin Scalia sure does like to talk about sodomy. His latest riff on the subject comes courtesy of an Ohio State University conference on the Constitution, where Scalia said that since the nation's founders didn't write sodomy or homosexuality into the U.S. Constitution, there's no good reason to think that people deserve the right to love whoever they choose.
Boy, if only the nation's founders had written that U.S. Supreme Court justices could be term-limited! Especially ones who go duck hunting with torture-loving ex-Vice Presidents.
Justice Scalia prodded folks who believe that the Constitution is a living document. "Did any provision of the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding. Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer," Scalia said, according to the Associated Press. It's a line he's used before, so three cheers for soundbytes that last more than a year.
Scalia's insistence that the Constitution can never be used to protect the rights of gay people smacks up against a great piece written by David Boies, one of the attorneys arguing the federal Prop 8 lawsuit along with former Solicitor General Ted Olson, which is challenging statewide bans on same-sex marriage. Boies argues that the U.S. Constitution does in fact recognize the right to enter into a loving relationship with someone of the same gender.
Boies says that LGBT rights, and specifically same-sex marriage, raises all sorts of emotions for people. But law isn't supposed to be decided based on personal preferences. It's to be decided on the principles of equality outlined in the Constitution.
"The constitutional issue is quite simple. The Supreme Court repeatedly has held that the right to marry the person of your choice is a fundamental human right guaranteed by the equal-protection and due-process clauses of the Constitution," Boies writes for the Philadelphia Inquirer. Boies then cites cases where the Supreme Court ruled that members of different races could marry one another (Loving v. Virginia), and one where the Court overruled a law that banned felons from marrying.
Surely Scalia would love the chance to rip into Boies. He may get his chance if Boies' and Olson's Prop 8 case makes its way to the U.S. Supreme Court before the Justice retires.
But at the end of the day, civil rights have never come about in this country with Justice Scalia's judicial philosophy in command. His is a philosophy rooted in the ghosts of time, that allows oppression -- think women not having the right to vote, slavery, the execution of minors, or Scalia's favorite, bans on sodomy -- to continue, simply because these issues weren't addressed specifically in 1787.
You can call that originalism. But you can't call it healthy for civil rights.
Michael Jones
is a Change.org Editor. He has worked in the field of human rights communications for a decade, most recently for Harvard Law School.
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