Ed Whelan, defender of all things Scalia and author of the “This Day in Liberal Judicial Activism” feature on National Review, is in the midst of a multi-post critique of my book (here, here and here).
I’m still mulling whether to take up Ed’s offer to potentially post a response on Bench Memos (my inclination is to let the book speak for itself), but I did want to take up a topic that Ed raises in his latest post: Whether Scalia had anti-gay animus. Ed writes:
Hasen contends that Scalia’s dissent in Lawrence v. Texas (2003) was “full of language seen as strongly anti-gay.” (P. 88 (emphasis added).) But there are many folks who seem to find it empowering to see things, or at least to feign to see things, that don’t exist. Here’s the supposedly deeply offensive passage from Lawrence:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
What Hasen and others overlook is that the adjective “so-called” operates to disparage the label “homosexual agenda.” So far from embracing that label, Scalia is distancing himself from it. (If Scalia had instead written that the justices in the majority had “joined forces with the so-called gay-rights movement,” his critics would surely have complained about that phrase.) In other words, while the phrase “the so-called homosexual agenda” may well have been ill-advised (if only because it gave some folks a predictable if weak excuse to rant), it’s reckless hyperbole to characterize it as “harsh anti-gay rhetoric.”
I struggled a lot in the book about how to understand whether Scalia had anti-gay animus, and I discuss the issue in detail on pages 86-91 of the book. But given Ed’s selective reading, I would point readers to this passage on page 90, which notes that in 2012, at a book event at Princeton, he was confronted by a gay student who said he was offended by Scalia’s statements in earlier cases comparing homosexual acts to bestiality and murder. Justice Scalia responded: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.”
I’d also point to these two tweets which shows how comments like “homosexual agenda” are treated by those in the LGBT community:
To read Scalia’s dissent in Lawrence and not feel the stinging homophobia in it is to be incapable of empathy and ignorant of the history of LGBT people in America.
— Sam Rubinstein (@Sam_Rubinstein) April 4, 2018