Is Scalia in Denial About His Own Homophobia?

Expanding the LGBTQ Conversation
Oct. 7 2013 10:02 AM

Is Scalia in Denial About His Own Homophobia?

Justice Antonin Scalia in 2007
Justice Antonin Scalia

Photo by Saul Loeb/AFP/Getty Images

New York magazine’s expansive new interview with Supreme Court Justice (and lecture-circuit troll) Antonin Scalia contains a number of delightful revelations—he thinks the soup Nazi is hilarious! he doesn’t want ladies to use the F-word!—but the real fun lies in his tortured justification for his gay rights jurisprudence. When Jennifer Senior asks the justice about his attitudes toward homosexuality, Scalia spins out this specious yarn:

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

I’m not a hater of homosexuals at all. ... I still think it’s Catholic teaching that it’s wrong. Okay? But I don’t hate the people that engage in it. In my legal opinions, all I’ve said is that I don’t think the Constitution requires the people to adopt one view or the other. ... [I’m] not saying I personally think it’s destructive. Americans have a right to feel that way. They have a democratic right to do that, and if it is to change, it should change democratically, and not at the ukase of a Supreme Court.

This, to quote Scalia himself, is argle-bargle. The justice wants us to believe that his personal views on homosexuality have absolutely no bearing on his jurisprudence and that his legal opinions on gay rights are simply cerebral exercises in judicial reasoning. In theory, this kind of detached jurisprudence isn’t implausible: Both Chief Justice John Roberts and Justice Samuel Alito wrote measured, dispassionate dissents in U.S. v. Windsor, and Justice Clarence Thomas once described anti-gay sodomy bans as “uncommonly silly” while voting to uphold them.

But Scalia’s writings on gay rights explode any notion of judicial remove, rocketing beyond casual homophobia into the repugnant realm of virulently anti-gay invective. Scalia has compared homosexuality to murder, polygamy, and animal abuse. He’s analogized gay people to drug addicts and prostitutes and likened gay sex to incest, adultery, and bestiality. He’s echoed his son in questioning whether gay people even exist, suggesting that homosexuality is actually aberrant, depraved conduct rather than a true identity. And he’s derided the “homosexual agenda” for “eliminating the moral opprobrium” against “a lifestyle [many Americans] believe to be immoral and destructive.”

Scalia wants to spout this censure while also insisting—as he does in the opinion quoted above—that “I have nothing against homosexuals.” (He even reveals to Senior that he has friends who he “very much suspect[s]” are gay, leaving one to wonder why in the world they haven’t come out to him already.) And though it may be possible to oppose gay rights without hating gay people, let’s be clear here: Whatever he says in this interview, Antonin Scalia really, really hates gay people. He thinks they’re wicked and twisted and deviant; he suspects they’re insidiously indoctrinating America with perverted values; he thinks homophobes are merely “protecting themselves and their families” from homosexuality’s corrupting immorality.

None of this, moreover, is conjecture: It is all taken straight from the justice’s own writings and copious public comments. These comments aren’t one-off gaffes; they’re an endless barrage, which, taken together, form a consistent philosophy of unrelenting homophobia. If Scalia feels constantly compelled to air his grievances about gay rights, so be it. But it’s intellectually dishonest for him to simultaneously maintain that these beliefs have no bearing on his jurisprudence.

There’s very little hope, of course, that Scalia will ever admit to his dissonant mendacity. But there is an indication that, at the very least, he’s beginning to foresee his place in history. When Senior asks him about his legacy, the justice concedes that “maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart of it.” Scalia defenders might want to read that statement as an acknowledgement of his anti-gay crusade’s failure, or even a tacit regret that he waged a losing war. Don’t believe it. Scalia might grasp that history will view him as an unrepentant homophobe, but to the unapologetic justice, that’s not a stain. It’s a badge of honor.


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