Scorn in the place of law Justice Scalia's dissent elevated spleen over constitutional principle

The Supreme Court And Gay Rights

June 02, 1996|By Charles Levendosky

"GET A LIFE, judge." That was the reaction provoked by reading Supreme Court Justice Antonin Scalia's petulant dissent in Romer vs. Evans, which struck down Colorado's anti-gay amendment.

He doesn't bother to disguise his loathing for homosexuals. He criticizes them for having "high disposable income," "possessing political power much greater than their numbers" and enjoying "enormous influence in American media and politics."

Could call it envy -- except U.S. Supreme Court justices enjoy more of the same. What has that to do with a constitutional question? Nothing. But then, most of Justice Scalia's dissent has nothing to do with the constitutional question at hand.

He even ends his dissent by nagging that some law schools require job interviewers to be willing to hire homosexuals.

He may be a brilliant scholar, but when he loses and takes it personally, Scalia-the-justice reacts with a narrowing tunnel vision. No light leaks through at the end.

Scalia carps on the fact that the majority decision didn't mention a dubious ruling the court made 10 years ago in Bowers v. Hardwick. Scalia says it should have been pivotal to the Romer decision.

The Bowers case involved the violation of a Georgia statute criminalizing sodomy. In a 5-to-4 decision, the high court upheld the state's right to make sodomy a crime. The court's ruling narrowly applied to an act of sodomy between two consenting homosexuals.

It did not address the question of married couples who might commit sodomy, even though they are covered by the law.

Although it doesn't alter the ruling, former Justice Lewis Powell, who voted with the slim majority, has subsequently said he regretted his vote.

Sodomy laws also apply to those of opposite sexes, married or not.

Sodomy, according to Black's Law Dictionary, means: "carnal copulation against the order of nature, by man with man, or, in the same unnatural manner, with woman or with a beast."

As Scalia noted in his dissent, Colorado repealed its sodomy law 25 years ago. Obviously sodomy as a crime was not at issue here. Equal protection of the laws was the issue.

Colorado's Amendment 2 would have allowed a heterosexual, who felt discriminated against by a homosexual, to sue for discrimination. In contrast, a homosexual who felt discriminated against by a heterosexual could not have sued for discrimination. That's just one example of an unequal application of the laws that Amendment 2 would have allowed.

Scalia's apparent homophobia has made him blind to the real issues.

Yes, according to the Bowers decision Colorado could make sodomy a crime, but Colorado chose to keep the police out of bedrooms. Yet, Scalia argues that if the state can criminalize the sex act between homosexuals, surely it can legislate against a homosexual orientation.

Notice, Scalia is not writing about an act. Not a conviction for

C crime -- a sexual orientation. Not conduct -- orientation.

Sodomy laws also make certain "unnatural" acts between consenting adults of the opposite sex a crime. Does this mean then that the state could, without a conviction for sodomy or even a law against it, make laws against a heterosexual "orientation" for oral-genital sex?

What utter nonsense.

Scalia lost it. So caught up in his vehemence he became blind to basic constitutional principle. In his dissent, he even attacked the justices who voted in the majority.

Unfortunately, Chief Justice William Rehnquist and Justice Clarence Thomas added their names to Scalia's dissent.

Pre-eminent constitutional scholar Laurence H. Tribe of Harvard Law School is certainly no liberal. In his amicus brief to the U.S. Supreme Court for this case, he wrote, "the command of equal protection extends to every person within the state's jurisdiction, regardless of what the person might have done, and certainly regardless of what the person might be inclined to do."

The brief concludes:

"Amendment 2, of course, is far more offensive to equal protection than any mere omission or refusal to protect; it embodies a deliberate commitment, embedded in the fundamental law of the State of Colorado, to make the full reach of the state's system for making and enforcing laws and regulations available only to some of the state's people and not to selected and specified others."

Justice Scalia's dissent is a shameful display of vitriolic advocacy instead of judicial temperance.

Justice Scalia should remove himself from any future cases that come before the court involving the rights of homosexuals. He has shown that he cannot see the law through the dark glasses of his prejudice.

Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has won a national reputation for First Amendment commentary.

Pub date: 6/02/96

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