Justice Antonin Scalia is on the wrong side of history, and he knows it. He sees a freight train in the near distance labelled gay marriage, and he is powerless to hold it back.
His dissents, in a line of gay rights cases that have reached the U.S. Supreme Court since 1996, have no counterpart in Canadian jurisprudence. Not even close. They are chock-a-block with sarcasm and direct insults against his colleagues in the majority. They also continue to make the untenable claim that “We the People” and their elected representatives have the right to discriminate against gays and lesbians.
In a world of change, the 77-year-old Justice Scalia is the constant. The U.S. now has openly gay soldiers; a professional basketball player has declared he is homosexual; a sitting president and vice-president have endorsed gay marriage. But he insists discrimination against gays and lesbians is mere disapproval of sexual mores, and not at all the same thing as religious or racial discrimination.
In 1996, after Colorado forbade any municipalities, or the State of Colorado itself, from protecting gays against discrimination in any sphere, the Supreme Court struck down the law by a vote of 5-4. Justice Scalia, in dissent, wrote: “Many Americans 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.”
In 2003, after Texas police entered a private home and found two men together, violating a Texas law against deviant sex, the Supreme Court struck that law down by a vote of 6-3. That is when Justice Scalia glimpsed the threat of gay marriage. He wrote, in dissent: “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct. . . what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
And then, in Wednesday’s 5-4 ruling that struck down the U.S. Defense of Marriage Act, depriving gay married couples of the federal benefits that heterosexual married couples receive, he saw gay marriage looming: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here – when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”
If Justice Scalia is right, the Supreme Court has put the legal foundations for gay marriage in place.