Friday, July 28, 2006

Xtra's Challenge; Pied's Retort

In the comments of my post last week on Supreme Court Justice Antonin Scalia's essay in the book A Matter of Interpretation: Federal Courts and the Law, our eminent Xtra challenged my assertion that Scalia's dissent in Romer v. Evans contained what I refer to as a gay conspiracy theory. In the same vein as Justice Scalia, I dissent. A selection of quotes from Scalia's dissent in that very intriguing case:
"The Court has mistaken a Kulturkampf for a fit of spite. [Amendment 2 of the Colorado state constitution] is not the manifestation of a 'bare desire to harm' homosexuals, but is rather a modest attempt [to] preserve traditional sexual mores against the efforts of a politcally powerful minority to revise those mores through the use of the law..." Romer v. Evans 517 U.S. 620, 636 (1996).

“The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct …” Romer v. Evans 517 U.S. 620, 644 (1996).

"The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities … have high disposable income …
and, of course, care about homosexual-rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.” Romer v. Evans 517 U.S. 620, 645, (1996).


First, some background about this case. Colorado had passed Amendment 2, which essentially allowed landlords, employers, and other similarly appointed folks to deny homosexuals housing, jobs, etc. based on their sexual orientation. In the majority opinion striking down the amendment, Justice Anthony Kennedy applied minimal, rational-basis review citing the fact that it violated the equal protection clause of the 14th Amendment to the US Constitution. Obviously, there was much more involved in this case than I'm willing to discuss here, but that's the gist of it.

Scalia, in dissent with Rehnquist and Thomas, does three things here:

First, he attempts to turn the law on its head by proclaiming that the Colorado amendment didn't deny equal protection, but rather that it prevented homosexuals from obtaining "preferential treatment." This, of course, is a complete farce. As Kennedy pointed out, the law's single objective was to deny protection to a class of individuals based solely on a single trait.

Second, Scalia attempts to paint a picture of homosexuals as a politically powerful minority that does not need equal protection. Scalia appears to believe homosexuals strategically amass themselves and their wealth in order to create a favorable social climate throughout the nation.

Finally, as many conservatives often do, Scalia compares homosexuality to polygamy and bestiality, trying to make a connection that allowing equal protection to homosexuals will open the door to equal protection to all sorts of other "conduct" that society morally disapproves. It is not homsexuals, Scalia asserts, that he has a problem with, it is homosexual conduct.

Similar arguments, of course, have been used throughout the ages to justify unequal and, in fact, immoral, treatment of disfavored minority groups. In several passages of Scalia's dissent, one could easily substitute "homosexual" and "homosexual conduct" with "Jew," "Asian," "race," or "religion." Scalia reaches for the moral high ground, as most arrogant social conservatives do, but it doesn't take much searching to find his crass and homophobic message.

1 comment:

xtrachromosomeconservative said...

I do suppose that is sort of queer. ha. get it. haha.