On LGBT rights: Scalia was the supreme loser

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“A man who be­lieved that Re­con­struc­tion should be the base­line for mod­ern hu­man rights is not some­one I will miss in­flu­enc­ing our na­tion’s pa­ram­e­ters of equal­ity.”

Given his life­time ap­point­ment to the U.S. Supreme Court, there was no way Jus­tice An­tonin Scalia was go­ing to end his war of in­tol­er­ance against LGBT Amer­i­cans, women and mi­nori­ties other than by dy­ing. So, from a strict con­struc­tion­ist per­spec­tive, I’m glad he is dead.

My sym­pa­thy goes out to Jus­tice Ruth Bader Gins­burg and oth­ers who were able to find en­dear­ing, love­able qual­i­ties in some­one who cul­ti­vated a most spite­ful pub­lic per­sona, but I won’t feign any per­sonal sor­row that Scalia’s heart stopped beat­ing. I doubt a man with such an acer­bic pen and dis­po­si­tion, some­one who as­saulted political cor­rect­ness (and ba­sic po­lite­ness) in his ju­di­cial ra­tio­nal­iza­tions of in­equal­ity, would ex­pect to be mourned by those he con­sid­ered in­fe­rior.

Scalia’s pass­ing re­news my op­ti­mism for things like crim­i­nal jus­tice re­form, re­dis­trict­ing, and main­tain­ing pro­tec­tions for af­fir­ma­tive ac­tion and a woman’s right to choose. In re­gards to LGBT progress, Scalia’s death feels al­most in­con­se­quen­tial, as, frankly, he was the high court’s big­gest loser on our is­sues.

When Colorado vot­ers ap­proved a state con­sti­tu­tional amend­ment to pro­hibit LGBT res­i­dents from en­joy­ing any and all rights, in­clud­ing pro­tec­tion from dis­crim­i­na­tion, in the early 1990s, Scalia wrote that it was “not the man­i­fes­ta­tion of a ‘bare ... de­sire to harm’ ho­mo­sex­u­als ... but is rather a mod­est at­tempt by seem­ingly tol­er­ant Coloradans to pre­serve tra­di­tional mores against the ef­forts of a po­lit­i­cally pow­er­ful mi­nor­ity.”

Ac­cord­ing to Scalia’s 18th-Cen­tury un­der­stand­ing of our world, the per­se­cuted group that lost in Colorado was “po­lit­i­cally pow­er­ful,” while the group that en­shrined dis­crim­i­na­tion into the state con­sti­tu­tion was “tol­er­ant.” Thank­fully, Scalia’s poi­sonous rea­son­ing was in the mi­nor­ity when the jus­tices ruled in Romer v. Evans, and Colorado’s big­oted amend­ment was struck down 6-3 in the first LGBT rights case to reach the high court.

Seven years later, when the Supreme Court ruled in Lawrence v. Texas that states could no longer im­prison LGBT Amer­i­cans for en­gag­ing in con­sen­sual sex­ual acts with a per­son of the same sex, Scalia char­ac­ter­ized the de­ci­sion as “a mas­sive dis­rup­tion of the cur­rent so­cial or­der.” Un­able to se­duce his col­leagues with his colo­nial-era para­noia, Scalia was again on the los­ing side of a 6-3-land­mark de­ci­sion.

He was also among the de­feated jus­tices in United States v. Wind­sor, which struck down por­tions of the fed­eral De­fense of Mar­riage Act, and he was sub­jected to an in­dig­nity that felt ap­pro­pri­ate for a sore loser. Scalia’s dis­sent was char­ac­ter­is­ti­cally loaded with pre­dic­tions of the dire con­se­quences that Wind­sor would un­leash upon our coun­try, only to have his words used by a dozen fed­eral judges to bol­ster the case for mar­riage equal­ity na­tion­wide.

When the Supreme Court de­cided whether mar­riage equal­ity was the law of the land in Oberge­fell v. Hodges last year, Scalia was, per usual, leader of the losers.

“When the Four­teenth Amend­ment was rat­i­fied in 1868, ev­ery State lim­ited mar­riage to one man and one woman, and no one doubted the con­sti­tu­tion­al­ity of do­ing so,” Scalia wrote in his Oberge­fell dis­sent. “That re­solves th­ese [2015] cases.”

A man who be­lieved that Re­con­struc­tion should be the base­line for mod­ern hu­man rights is not some­one I will miss in­flu­enc­ing our na­tion’s pa­ram­e­ters of equal­ity. I only hope Scalia’s bloated corpse leaves enough room in the cas­ket or cre­ma­to­rium for his ex­pired ide­ol­ogy to be put to rest as well.

Ryan Lee is an At­lanta writer.

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