Bil Browning

Barney Frank on his Scalia statement

Filed By Bil Browning | March 26, 2009 5:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: Antonin Scalia, Barney Frank, Defense of Marriage Act, homophobic behavior, Supreme Court

Representative Barney Frank's office sent us this statement to clear up his comments on Supreme Court Justice Antonin Scalia's obvious homophobia:

While responding to questions from journalists about my characterization of Justice Antonin Scalia as a homophobe, I realized that the fact that I made that comment in conjunction with a potential lawsuit about the Defense of Marriage Act created some confusion as to my basis for that characterization.

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.

Statement continues after the jump - including the examples of Scalia's homophobia included by the Congressman's office.

This comes out most clearly in his very vigorous abjection to the court's decision to block a criminal prosecution against two men who had consensual sex in the privacy of their bedroom. And it is made very vivid in the passage in which he affirms society's right to treat homosexuals unequally by citing other categories which deserves such treatment - beginning with murder.

It is of course possible for reasonable people to differ over what the Constitution requires in these cases. But the point is that Justice Scalia goes far beyond simply denying that there is a constitutional right here and makes clear his support for the discriminatory policies based on his condemnation of homosexuality. This is best illustrated by the contrast between his writing in the criminal sodomy case and that of Justice Thomas, who in disagreeing with his colleague's view that the Constitution prohibits criminal prosecution for private consensual sex between adults, notes that he believes that the law in question is "remarkably silly" and notes that he would have voted against it if he was in a legislature. So while both Justice Thomas and Justice Scalia are in the minority upholding the right of criminal prosecution, Justice Thomas makes clear his disapproval of this as a matter of policy while Justice Scalia enthusiastically embraces it.

I have attached some of the relevant quotations from the two opinions.


[June 26, 2003]
No. 02--102


Lawrence vs. Thomas was a landmark US Supreme Court case in which the court struck down the sodomy law in Texas, which was specifically targeted against homosexuals. Justice Scalia authored the dissent, joined by Justices Rehnquist and Thomas.


One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

on writ of certiorari to the Supreme Court of Colorado
[May 20, 1996]

In Romer v. Evans, the US Supreme Court ruled against an amendment to the Colorado state constitution which would have prevented municipal governments from taking action to protect homosexuals from discrimination. Justice Scalia wrote the dissent, with Justices Rehnquist and Thomas joining.


First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.....

But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.

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Bill Perdue Bill Perdue | March 27, 2009 6:47 PM

Barney, in typical Democrat fashion, has his own problems with homophobia (in the anti-gay usage of the word) and they're demonstrated in his opposition to advances to same sex marriage and in anti-discrimination laws like an inclusive ENDA which he opposed.

His relation to the fight for equality is epitomized in his leading the effort of Republicans and anti-gay Democrats in gang-raping ENDA. He engaged in wildly abusive and disruptive attacks on transpeople. He accepted, for the Democrat majority, every amendment to ENDA made by Republicans, including one that stipulated that ENDA could not be used to undercut DOMA.

Before he tries making points in the LGBT community he ought to offer an apology to us and especially to transpeople, who he viciously maligned.

Scalia's opinion, comparing us to murderers, is absurd. It proves he's a homophobe. And though Barney's use of the word homophobe could be considered disrespectful of the court, that's nothing compared to the contempt, character assasination, and false witness republicans poured in the 90s on the office of the Presidency. Of course, the commandment against bearing false witness doesn't mean jack to fundamentalists. And their outrage over Barney's insult rings hollow.
But Barney doesn't own me any apologies for compromising on our issues. He's a politician. It's what they do. He's argued eloquently for years on our behalf, and for many other crucial issues. He's a darling and I'm thrilled to have him there.

I think Barney Frank did an excellent job this week of advocating for us and raising the problem of judicial homophobia, at the highest level. Frequently discussions of judges personal opinions on social issues only focus on their views on abortion. If social conservatives can insist on a litmus test for that issue, why shouldn't we insist on a litmus test for future Supreme Court justices that they do not think it is acceptable to legally discriminate against LGBTQ people?

If it weren't for Barney Frank's comments this issue wouldn't have been considered in the high-profile way it was this week. Similarly, if it weren't for Barney Frank, a lot of LGBTQ-related legislation wouldn't have been introduced in Congress (multiple times in most cases...)

It's absolutely reasonable to be upset over ENDA. But can we cease making Barney Frank the whipping boy for a situation he doesn't control - a huge number of homophobic and transphobic voters, and many representatives that don't have an incentive, from their perspective, to be advocates for LGBTQ rights, because their constituents sure clamoring for LGBTQ rights, and in any cases may be clamoring to take them away? We have to lobby all of them to present our point of view. Barney Frank may be the friendliest and most influential ear we have in Congress. But we can't expect that we'll automatically get what we want because he's there and he's gay, and we shouldn't destroy him when we don't get our way. I feel like if an ounce of the outrage directed against Barney Frank and HRC had been constructively used to reach out to a variety of legislators, organizations and potential allies in districts across America, we'd get a lot more done.

beachcomberT | March 28, 2009 6:58 AM

I applaud Barney Frank for calling out Justice Scalia for the tone and phrasing of his dissents. I disagreed with Frank on his ENDA strategy and his acquiescence to Don't Ask but overall he is doing more than anyone else to advance gay equality in Congress. He doesn't need to be overly polite to homophobic judges. I wish a few more lawmakers had his guts

Gerri Ladene | March 28, 2009 3:49 PM

Even though I have my own opinion of Barney (ENDA related), he still is the most vocal voice of support for the LGBTQ community in Congress and for that I support him! The "Log Jam Republicans" lack the balls to do anything but show their absence of involvement, they support the HRC in its straight gay approach and little more? The Stonewall Democrats have a “Brief the White House “ page on their site where anyone can send them a comment of what their priorities are, post here . For anyone wishing to take voice their opinion on what they feel important!

Just as Justice Scalia condones hostility toward homosexuality in his efficacious Dissent and claiming, ”But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable.” Maybe his Honor should consider something truly American into account before making such a Dissent,” Every one of the people of the United States owns a residue of individual rights and liberties which have never been, and which are never to be surrendered to the state, but which are still to be recognized, protected and secured from infringement or diminution by any person as well as any department of government.” That's equality for all and not the discriminating excrement that Americans should never here from the judicial arm of our government!

I continue to poke at the religious right wing as being the root of all evil in our society! Anything to do with discrimination always leads to these nut-jobs! The best we can do for change is to continually make our voices heard, this is something we must never let up on! Political involvement is an American right given us by our Constitution, to petition the Government for a redress of grievances. When the “Religious Right” a.k.a. the parochial, anti-reasoning, anarchists of imbecilic thought who claim a god is on their side, they forget something very important. The Constitution of this Nation was created to give its citizens freedom to practice any religion/superstition they so choose, without persecution. Something Justice Scalia ignores due to his religious morals thereby validating the persecution of Americans who do not share his particular religious morality!

In the Preamble of the Constitution, “We the people”, makes a statement to “ secure the Blessings of Liberty to ourselves and our posterity”. No where in the Constitution does it give authority to any religious/superstitious group to diminish this liberty on any citizen who does not share in their belief, that is totalitarian thought that has no place in a free society. I have a real problem with groups that use the America/American in the title of their group and use it to delude others into promoting hate and discrimination against any other American. They would do better to post a swastika and reveal their true purpose. I would not assume to take away their right to practice their superstitious beliefs, it's their right. I also have the right not to believe as they do and still be a moral person, this makes me no less American than them! Their false claims of religious moral view are used only to justify their ignorance and inadequacy for reason.

For interesting reactions, check out the HuffPost 1,200+ comments on this story:

Why I Called Justice Scalia A Homophobe

Regan DuCasse | March 28, 2009 3:18 PM

I care very much that Scalia compares gay people to murderers and thieves and so on.

But in deciding on the fate of DOMA and other marriage equality issues: thieves, murderers, convicts, adulterers, the divorced, the condemned

can ALL get married!

Something that Scalia (nor any of the other more conservative members of the bench) can deny and say there is no precedent in the moral consciousness that made such freedom to marry possible for the most reprobate and marginally capable in our society.

I don't even know why this is a controversy, other than some folks wanting to beat up on Frank. The right-wing could have easily ignored his 365gay interview in the first place if they wanted to.