By Ryan M. Leach
The Supreme Court of the United States unexpectedly lost one of it’s most controversial members on Saturday, February 13, 2016. Justice Antonin Scalia died of natural causes in Marfa, Texas. Scalia was 79 years-old.
The news brings mixed emotions to many in the lesbian, gay, bisexual, and transgender community. On the one hand, common decency dictates that we mourn the loss of any life. Scalia had family and friends who are experiencing the grief of losing a loved one. To that extent there is no joy to be had at the passing of an arguably brilliant jurist who served the court and his country for the majority of his career. On the other hand, Scalia could be characterized as enemy number one to the LGBT community.
In his scathing dissent to Lawrence v. Texas, the case that found that laws that prohibited sodomy were unconstitutional, Scalia expressed alarm that the ruling could eventually lead to lifting the ban on same-sex marriage.
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision…what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Scalia’s predictions were indeed correct when bans on marriage equality were lifted in Obergfell v. Hodges on June 26, 2015. But Scalia’s reasoned that his opinions were based in his belief that the states should be allowed to make decisions relating to marriage and morality. Although his justification may have been rooted in his strict constructionist viewpoint of the law, it was abundantly clear that the justice himself held the personal belief that gay people were not owed the same rights as their straight counterparts. Again, in Lawrence, Scalia 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,” he wrote. “They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Time and again Scalia drew parallels between homosexual behavior and other illegal or immoral activity, exposing wither a complete misunderstanding or total disregard for the people he was making monumental life decisions for. Luckily for LGBT Americans, Scalia’s personal opinions about their community remained only his. The court, time and again, ruled in favor of equal treatment for LGBT people, much to the chagrin of it’s most caustic and blustering Justice.
It is unclear whether his opinions about of the gay community were borne out of malice or confusion, like his comparison of gay couples to “roommates” in his dissent in Romer v. Evans, the case that a state constitutional amendment in Colorado preventing protected status based upon homosexuality or bisexuality did not satisfy the Equal Protection Clause. Scalia never seemed to soften on the idea that the LGBT community should be treated with the same respect and equality granted to every American citizen. His passing, although sad for many is also met with a sigh of relief from the LGBT community. And those mixed feelings are valid. The relationship between Scalia and the LGBT community was not a good one. But his family and his service are owed respect, even if Scalia himself did not show that same respect to gay people. The one thing that we all have in common is our humanity and that should take precedent. We can feel sorry for his family and still feel happy for every other family in the country because his replacement, appointed by Obama, will likely have a friendlier point of view when it comes to LGBT rights.
It is the President’s responsibility to put forth a replacement for Scalia and then the responsibility falls to the Republican controlled senate to confirm that appointment. With around ten months left in the President’s term it is going to be interesting to see how long the senate can stall the confirmation of Obama’s third Supreme Court appointment. His other two were Justices Elena Kagan and Sonia Sotomayor. Historically, the longest confirmation period for a Supreme Court Justice was 125 days. President Obama has over 300 days left in office. In the mean time, should the eight remaining justices find themselves in a 4-4 tie, the law states the ruling of the lower court will stand and no judicial precedent will be set by the Supreme Court. With landmark cases on the Court’s agenda it will be tough for the senate to justify leaving a vacancy on the bench.
Rest in peace, Justice Scalia. Thank you for your service. Thank you for your candor. Thank you for your legal brilliance. You will be missed by many people; but probably not by many people in the LGBT community.