Lawrence, FAIR, Scalia, and the “Homosexual Agenda”
posted by Kaimipono D. Wenger
Two years ago, in his Lawrence dissent, Justice Scalia warned us of an ominous development. The court, Scalia argued, had not just gotten the law wrong. It had also taken a specific side in the culture wars:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. 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. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
That’s a lengthy statement, and characteristically snappy; Justice Scalia certainly knows how to turn a phrase. But what of its substance? Let me pull out a few of the highlights.
-”[Lawrence] is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda”
-”the Court has taken sides in the culture war”
-”So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream’ . . .”
Justice Scalia made those statements in 2004, four years after the Court in Dale upheld the ability of the Boy Scouts to exclude gays. And it sounded overwrought then. Now, in 2006, those statements look even more silly.
After all, the Court — this court that has bought into a “homosexual agenda” — has just ruled in FAIR v. Rumsfeld. And the court unanimously upheld the government’s ability to use monetary incentives to protect the military’s ability to recruit on Universities. This was a loss for the gay rights movement. Even more, it seems to have been, as various news accounts indicate (such as Adam Liptak in the New York Times), a complete rejection by the court of gay-rights arguments made by a group of law professors.
The paper trail doesn’t lie. Three high-profile gay rights decisions since 2000; Dale, Lawrence, FAIR. Two of the three going against gay-rights advocates, including one — the most recent — unanimously. That kind of paper trail is, apparently, the product of a court that has “largely signed on to the so-called homosexual agenda” and has “taken sides in the culture war.” A court that is “imbued” with “the law profession’s anti-anti-homosexual culture.”
Since I’m a nice guy, let me offer a rewrite of one of Justice Scalia’s sentences, to bring it into conformity with the actual record:
So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream’ tends to rul against gay rights, and has just unanimously rejected the latest gay-rights argument to be made by law professors.
Hmm. Less inflammatory, to be sure. But it has the benefit of actual fidelity to the facts. Now I guess that “homosexual agenda” sentence in the dissent probably needs a rewrite too . . .
March 16, 2006 at 12:48 am
Posted in: Constitutional Law
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Responses (10)
Dylan - March 16, 2006 at 7:23 am
This is embarassingly facile. FAIR is quite easily characterized as an instance of the “homosexual agenda” crowd being more concerned with potential damage to broader civil rights. Prioritizing agendas doesn’t mean the lower priority ones don’t exist.
As for Dale, Kennedy’s record for “growth” and changing his mind (i.e., Casey) isn’t exactly sparse. Either he was a latecomer to the homosexual agenda crowd, or he only held to it weakly and found some other cause more compelling, a situation that didn’t arise in Lawrence.
MJ - March 16, 2006 at 7:41 am
Apparently you didn’t get the memo that FAIR v. Rumsfeld was not a gay rights case – it was a first amendment and spending clause case. The issue of discriminating against gays by the military was not challenged or argued. Calling FAIR a gay rights case is like calling Miranda a case about kidnapping and rape.
Moreover, even if it was a gay rights case, to take a post hoc development like FAIR and impunge Scalia’s 2003 assesment of the court’s rationale IN THAT CASE is the equivalent of saying that Roper v. Simmons proves that the Rehnquist Court was pro-criminal defendant. Either a careless or deliberate misuse of ancedotal evidence; subjected to zero intellectual rigor.
MR - March 16, 2006 at 3:37 pm
When you asked about whether it was factually true, I thought you were referring to the “culture war.” Imagine that this was written 50 years ago, but instead the word “homosexual” was replaced with “black” (probably “Negro” then). The statements would seem pretty discriminatory today.
PD - March 16, 2006 at 4:12 pm
I’m with JP re the FAIR case–not a gay rights case. There is a decent argument that Dale was not a gay rights case either, rather, a First Amendment case.
Lawrence is the only of the three that deals directly with “gay rights”–ie the freedom to engage in homosexual activity. That one turned out exactly as pro-gay rights law professors wanted it to. Hence the scathing Scalia dissent.
Can anyone seriously argue that Lawrence was the most important of the three to the gay rights movement?
Mark B. - March 16, 2006 at 8:27 pm
It’s as a certain professor now at Yale, but who was a colleague of Scalia’s 25 years ago at Chicago, said to me about the law professor profession (in 1991):
All they’re concerned about is whether you have the constitutional right to bugger your neighbor.
Lawrence was the only case to address that issue directly. Dale and FAIR v Rumsfeld were, as other commenters have said, 1st Amendment and Article I-legislative power to raise armies-cases, respectively.
And, even if Scalia’s reference to the “homosexual agenda” is a bit over the top, his denunciation of the Court’s anti-democratic decision is spot on.
Jeremy Pierce - March 20, 2006 at 12:18 pm
Even aside from the points already raised, all Scalia was saying is that the Supreme Court had on this case given in to a culture largely on one side of this issue in what he calls the culture war. Even ignoring that some of the cases aren’t really about gay rights, all he’d have to say is that the Supreme Court is becoming less largely given over to that agenda than it was in 2003 (which was three years ago, not two). Once you factor in the other issues, particularly the ones that clearly decided these cases for the liberal and moderate justices, he doesn’t even need to modify his conclusion that much. But even if he did have to modify it that much, it doesn’t mean he was wrong then, just that it’s become less so since then.
Todd Mitchell - March 20, 2006 at 4:55 pm
In a similar vein, I hope you have seen this latest outburst from “El Nino”:
http://articleofaith.blogspot.com/2006/03/el-nino-sexual-orgies-ought-to-be.html
Todd
Obvious Point - March 20, 2006 at 9:17 pm
Sorry to make the legal realist Heisenberg Uncertainty Principle point here, but Scalia is obviously trying to push the court in a certain direction by exposing it to ridicule and criticism that otherwise would not be made. He is employing a tactic that Blackmun excelled at, but from the right. The fact that the Court has tacked to the right on gay rights may indicate that the Court has grown sensitive to much of the criticism that has come its way because of Saclia’s stinging and plainly worded dissents. Do you know of any law professor who can teach a class on rights without discussing Lawrence and without taking seriously Scalia’s dissent? No. Scalia is actively changing the legal culture by injecting into it ideas that otherwise would not be there. And he knows it. He is not aiming simply to describe a historical incident; he is actievly playing a political game. And playing it well.
Simon - March 21, 2006 at 10:02 am
I agree with the other comments, most of which (entirely correctly, in my view) dispute that FAIR had much to do with homosexuals as a matter of law. However, it also bears noting that Dale is not really about homosexuals either; it is about association, and in that sense, actually doesn’t take sides, in that it is of some utility to both sides. There’s a marvellous video on C-SPAN where some spotty malcontent asks Justice Thomas – with heavy inference – how he would defend (”defend”! way to show your cards!) Dale, and after some thought, Thomas explains it in a way that just destroys the questioner. Dale was about the right of the Scouts to exclude people who sent a message the Scouts disapproved of; it has equal applicability to gays, communists, Republicans, people who are mean to cats and self-mutilators. But, Thomas asked the questioner, can a homosexual group refuse membership to a homophobe? Why, yes, replied his interlocutor. Why? Wondered Thomas. The spotty malcontent fumbled. His opponent on the ropes, Thomas pressed the point: could the NAACP exclude a member of the Ku Klux Klan? The spotty malcontent thought so. Why? Wondered Thomas. At this point, the penny dropped, audibly.
In sum, I think it mischaracterizes Dale and FAIR as being decisions about homosexuality. To be sure, the homosexual agenda — assuming that one exists, and I am suspicious of such blanket categorizations, as Justice Thomas of all people should appreciate — may well have been the animating purpose in bringing the lawsuits (in both cases, I think there were entirely more seditious motives driving the decision to litigate), but as a matter of law, those cases are about very much more broad issues.
Simon - March 21, 2006 at 10:03 am
As Lady Justice Arden put it, “we must not forget that the dissenting opinion is often very valuable in the development of the law in the long term. Often, it contains the germ of an idea, which in a new generation will give forth to the large oak tree. So we should not underestimate the value of those dissenting judgements.”
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