Friday, January 4, 2013


What if a Supreme Court Justice publicly expressed discriminatory opinions against an entire population segment? And what if that same Justice repeatedly voted in a way that would deny that population segment the same rights as other Americans? And most importantly, what if the culture was rapidly changing in favor of the above-mentioned population segment, but the Justice continued to vote in favor of what he has referred to as “rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."

The very bad news is that there is indeed such a Supreme Court Justice. For those who have not really paid much attention to him, let me introduce Supreme Court Justice Antonin Scalia (below, left). And that much talked-about population segment? That would be gay Americans, a part of the U.S. citizenry that Scalia has clearly chosen to disenfranchise at every turn. That is why I am using my citizen voice to ask Scalia to recuse himself from the Court’s 2013 votes related to gay rights. I believe Scalia should step aside during these votes based on his unfortunate, discriminatory and fully homophobic past votes on issues related to gay Americans.
This year, the Supreme Court is slated to vote on two critical issues related to gay rights -- California's Proposition 8, which bans gay marriage, and a provision of the federal Defense of Marriage Act.  In the first case, the Court will consider the constitutionality, or lack thereof, of California’s Proposition 8, which defines marriage as only between a man and a woman.  The second critical decision will have to do with the Defense of Marriage Act, which also holds that only men and women can marry one another, and that all of the following are not legal for gay couples:  Insurance benefits for government employees, Social Security survivors' benefits, immigration, and the filing of joint tax returns.

For the record, DOMA was signed into law in 1996. These past 17 years have seen more rapid social change regarding gay Americans than in any time in U.S. history. Even the President who signed the bill into law, Bill Clinton, now disagrees with it. So do a number of federal courts that have ruled the bill unconstitutional. DOMA does not really apply to contemporary America. And although 1996 may not seem like such a long time ago, we all know that much has changed since then. So, those “traditional sexual mores” Scalia once referred to are not so traditional anymore.

Here is why Scalia needs to dismiss himself from this debate. First, and most recently, during an appearance before the American Enterprise Institute (a conservative think tank), Scalia, said, “Homosexual sodomy? Come on. For 200 years, it was criminal in every state."  Scalia’s comments are uninformed on two fronts: First, homosexuality is not all about sodomy. Without going into the graphic details, let’s just say that just like heterosexuals, some homosexuals engage in sodomy and some do not. And just like heterosexuals, homosexuals base their loving relationships on a number of human elements, only one of which is sex.  Second, many laws that were enacted 200 years ago no longer apply to the wide population in the U.S. Has Scalia taken a look at copyright laws, for example, since technology wrought online publications?  The “200-year” rule is not a valid argument for discrimination.

Further, in an address to students at Princeton University in December, Scalia said, ““If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Clearly, Scalia, 77, came of age at a time when World War II had recently ended, and the country was in the throes of true conservatism. There was little or no talk of civil rights, and almost no talk of homosexuality. He was raised in a strict Catholic household, and attended a private Catholic high school.  In a 2010 NY Times article,a high school classmate of Scalia’s said, "This kid was a conservative when he was 17 years old. An archconservative Catholic.” It is the “archconservative” part that matters here, not the “Catholic” part. Believe me, there are plenty of gay Catholic Americans who would jump at the opportunity to get married.

There is a federal statute that governs judicial recusals.  Here is what it says: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

How much clearer could it be? Scalia is unqualified to rule on issues related to gay rights. I could easily make the case that Scalia is simply too out of touch with contemporary culture and society to rule on these cases, but instead, it is more appropriate to simply label him as unqualified to do so, based on the above-mentioned federal statue. His “impartiality might reasonably be questioned” and he clearly “has a personal bias or prejudice” against the homosexual population in America.

Justice Antonin Scalia needs to recuse himself from both cases that are due to be heard in the Supreme Court this coming Spring.

1 comment:

Anita said...

Bravo, Mr. Greenberg. He does indeed need to recuse himself. Do not, however, attribute his bigotry to his age. I and many other people his age and older are far more aware of the need for fairness and equality in our society. Scalia and men like him have decided at an early age that they knew everything they needed to know about how the world should function and they closed their minds to change. Their privilege and power have always been more important for them to protect than the rights of others. His very being is an argument for smashing bigotry and exposing misuse of power and privilege. There are young men who are rising up to replace the Scalias who will soon be gone. These young men align themselves with the Men's Rights movement, curious church-like organizations like Mars Hill, and many other groups dedicated to preserving straight, white, male privilege and disenfranchising women, people of color and LBGT citizens. At the end of the day, it is a backlash against the progress in human rights by people who are lazy thinkers with a fearful, might-makes-right worldview devoted to self protection and self aggrandizement and it is rotten clear through.