Judicial Homophobia

UPDATED: Barney Frank has a column at Huffington Post that further explains his comments about Scalia. Here are highlights:

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My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability.

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Recently, Barney Frank called a spade and spade and voiced his view that Supreme Court Justice Antonin Scalia is an anti-gay homophobe. While Frank is taking some heat for speaking the truth, Scalia is only one of many judges and justices on the bench who should not be in their current positions because of their unwillingness or inability to put their own personal anti-gay bigotry. I can name judges right here in Norfolk who are serious homophobes in my opinion and who should never have been put on the bench. Gays appearing before these and similarly bigoted judges are sadly nearly guaranteed to be mistreated and denied the same justice their heterosexual counterparts regularly receive. In the case of Scalia, Frank cites Scalia's own opinions to make his case against Scalia. Here are some highlights from CNN on Frank's statements:

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(CNN) -- Congressman Barney Frank is taking some major heat for making a serious accusation against Supreme Court Justice Antonin Scalia. "I do think this argument that it is unconstitutional for the federal government to pick and choose as to which marriages it will accept is a good one. At some point that's going to have to go to the United States Supreme Court," Frank told the Web site 365gay.com on Friday. "I wouldn't want it to go to the United States Supreme Court now because that homophobe Antonin Scalia's got too many votes on this current court."

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Two opinions written by Justice Scalia in which he makes it very clear that he thinks it's a terrible idea for people who are gay or lesbian to have equal rights. It's not based on his views on marriage. . . . A few years ago, the state of Texas tried to send to prison two men who had private, consenting sex in their own bedroom. And the majority on the court said, "That's unconstitutional. That's an invasion of privacy." [Lawrence v. Texas].

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Justice (Clarence) Thomas said, "Well, I think it's a silly law. I would have voted against it, but I don't think the Constitution prohibits it." Justice Scalia wrote a long, angry dissent in which he made it very clear he thought it was a perfectly good law and that, in fact, homosexuals, as he refers to us, are bad people, and the notion that there ought to be any kind of legal protections is a mistake.

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In an earlier case in Colorado, in which he again vigorously denounced the majority in the court for finding that it was unconstitutional to discriminate against people, again, not in marriage but a basis of their political rights, he said, "Well, of course, we disapprove this. We often disapprove of things like murder." I mean, literally, when he was looking for comparisons to the public disapproval of homosexuality, the first thing he said was murder.

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So unlike many people who have different legitimate views on this, I urge people to read those two opinions in the Colorado case, the Romer case and the Lawrence case. And, again, there is just no question about his absolute view that ... homosexuals are bad people that shouldn't be treated equally.
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I just differentiated between Justice Scalia and Justice Thomas. Justice Thomas said it's a silly law to send people to prison because of private, consenting sex. Scalia basically says "Yes, that's where they belong." So that's exactly the case. . . . And, again, the issue in my mind is his vehement denunciation. Let's put it this way: He says it's taking sides in the culture war if you don't send people to jail for having private, consenting sex. It's got nothing to do with marriage.

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Judicial homophobia is a very serious problem and in my view is something that gay rights organizations need to do much more to expose. I applaud Barney Frank for calling it like it is. One can only look forward to the day when bigots like Scalia and similar homophobic are no longer on the bench and in a position to allow them to inflict their personal bigotry on litigants who ought to be treated no differently than every other citizen.