Last edited: October 25, 2003

Scalia Derides High Court’s Gay Sex Ruling / Network, October 24, 2003

By Eric Johnston

SUMMARY: Supreme Court Justice Antonin Scalia ridiculed his court’s recent ruling which struck down anti-gay state sodomy statutes during a speech on Thursday.

Supreme Court Justice Antonin Scalia ridiculed his court’s recent ruling which struck down anti-gay state sodomy statutes during a speech to a conservative group on Thursday, calling it a result of a “liberal political order” that flies in the face of his strict interpretation of the Constitution.

Scalia told a gathering of the Intercollegiate Studies Institute he thinks his fellow justices are twisting the Constitution in ways the nation’s founding fathers did not intend when they wrote the historic document.

The ruling, Scalia said, “held to be a constitutional right what had been a criminal offense at the time of the founding and for nearly 200 years thereafter.”

Scalia thinks the court should interpret the Constitution according to how the founders would have ruled on particular issues during George Washington’s time, according to Jon Davidson, senior counsel for Lambda Legal, who spoke to the Network from Los Angeles on Friday.

“(It was) a time when we had slaves, and women were their husbands’ property and people who were not landowners could not vote,” said Davidson. “Things have changed, thank goodness.”

“He’s an advocate of strict constructionist theory of the Constitution, meaning the Constitution only means what it meant in 1787,” said Ken Layton, legal director for the Human Rights Campaign. “And he decides cases as if it’s 1787. The only problem is it’s a different country, and it’s left Justice Scalia behind.”

Scalia wrote a bitter dissent of Lawrence v. Texas, the high court’s June ruling that struck down a Texas state law banning private, consensual sex between adults of the same sex. The court’s ruling also nullified sodomy laws in 12 other states.

In his dissent, Scalia warned the ruling would open the door to striking down state laws barring gay marriage.

The ruling was more about privacy rights than sex, according to Cathy Renna, news media director for the Gay & Lesbian Alliance Against Defamation (GLAAD). “It has seemed to propel a lot of anti-gay organizations to focus on civil marriage as a huge way of attacking our community,” said Renna.

“Most of today’s experts on the Constitution think the document written in Philadelphia in 1787 was simply an early attempt at the construction of what is (now) called a liberal political order,” Scalia said in his comments Thursday.

“I think it’s sour grapes that he’s not getting his way,” said Davidson. “His view of constitutional interpretation is not the same as the rest of the court.”

Scalia showed contempt for his colleagues on the bench that is rarely seen from a member of the high court.

Democratic National Committee Chairman Terry McAuliffe issued a statement Friday, saying: “By mocking the court’s ruling, Justice Scalia is showing that his intolerance also makes him unable to respectfully disagree with his colleagues.”

Added Layton: “It comes as no surprise that Justice Scalia is outraged about a decision for equality and against discrimination.”

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