Scalia’s offhand quip stirs debate over bias
A lawyer for same-sex couples had just finished her opening arguments to the U.S. Supreme Court in Tuesday’s hearing on marriage when a spectator began shouting, “If you support gay marriage, you will burn in hell! It’s an abomination!” The bellowing continued as guards hauled the man away, and the podium fell silent as Chief Justice John Roberts took a brief timeout before calling on the next attorney.
Then Justice Antonin Scalia spoke up. “It was rather refreshing, actually,” he said. His tone sounded jovial, and laughter could be heard in the courtroom. Less audible was the shock among many supporters of same-sex marriage and those unaccustomed to hearing a robed authority appear to endorse a disruptive partisan.
The Supreme Court exempts itself from the ethical rules that apply to other federal judges, so there will be no official investi
gation into whether Scalia violated standards requiring judges to act in a way that “promotes public confidence in the integrity and impartiality of the judiciary.” But in the court of public opinion, the debate remains open on what the court’s longest-serving justice meant by his words — were they an expression of bias that would have disqualified a lower-ranking judge, or something more benign, like an attempt to defuse a tense situation with a dose of humor?
It was “a gratuitous comment that could be heard to legitimize an offensive outburst,” said Deborah Rhode, a Stanford law professor who teaches legal ethics. While judges often reveal their viewpoints when questioning lawyers, she said, a remark like Scalia’s tends to “diminish popular perceptions of the justices as disinterested neutral observers.”
But Morris Ratner, a law professor at UC Hastings in San Francisco who also teaches ethics, said Scalia’s comment was no more indicative of bias than his past judicial opinions.
“I wouldn’t have said the comment if I were a justice on the court in a highly charged case,” Ratner said. But, he observed, “judges always reveal their preferences when they rule. The longer someone’s been sitting on the court, the more we know their preferences. I find it hard to get too worked up about this quip.”
Scalia’s views are no secret. He dissented from the court’s first gay-rights ruling, a 1996 decision striking down a Colorado constitutional amendment that would have prohibited state and local laws protecting gays and lesbians from discrimination. Laws, Scalia wrote, can be validly based on “moral disapproval of homosexual conduct,” like other statutes expressing disapproval of “murder, for example, or polygamy, or cruelty to animals.”
Dissenting from a 2003 ruling that struck down criminal laws against gay sex, Scalia said a state should be allowed to criminalize sexual behavior that their citizens consider “immoral and unacceptable,” such as “fornication, bigamy, adultery, adult incest, bestiality and obscenity.” The court majority, he wrote,
“has signed onto the so-called homosexual agenda.”
He has said much the same thing in public appearances. Asked by a gay Princeton University student in 2012 why he had likened disapproval of homosexuality to disapproval of murder, Scalia replied, “If we cannot have moral feelings against homosexuality, can we have it against murder?”
In a 2012 talk to the conservative American Enterprise Institute, Scalia said that supposedly difficult legal problems had simple solutions when viewed in the light of history and the intentions of the Constitution’s drafters.
“Abortion? Absolutely easy,” he said. “Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”
It’s one thing to speak casually about serious subjects in an informal appearance, though, and another thing to do it from the bench in the year’s most closely watched case, one in which courtroom spectators and those who follow the news expect justices to look and act impartial regardless of how they feel. Some instructors in judicial training classes discourage new judges from trying to be humorous, since at least one of the opposing parties is likely to feel offended.
“It’s always shocking to lay people, especially, to see behind the robe an actual human being,” said Ratner. While Scalia’s “refreshing” remark sounded like an endorsement of the protest, he said, the justice may have meant only that it was “refreshing to see an expression of emotion” during a highminded legal debate.
Ratner said he’s also unpersuaded by some conservatives who have demanded that liberal Justices Ruth Bader Ginsburg and Elena Kagan disqualify themselves from the marriage case because both have presided at friends’ samesex weddings. That’s no indication of bias, he said, since a judge might agree to do something for a friend without com- mitting to allow same-sex marriage nationwide.
One gay-rights advocate in a forgiving mode is Evan Wolfson, founder and president of Freedom to Marry and an early organizer for equal-marriage rights. Wolfson, who was in the courtroom Tuesday, said he’s willing to give Scalia “the benefit of the doubt, that it was a joke, in the moment, about the tension in the room.”
More important, he said, was the message that the protest itself should send to the court.
“I think this was a real vivid piece of evidence about why gay people should not have to put their rights up to a vote,” Wolfson said. “Not that everyone’s a hater, but that there is hatred out there.”