Op-ed: Scalia Too Biased to Judge Marriage Cases

Before the Supreme Court hears arguments on Proposition 8 and Edie Windsor's DOMA case, the bench must address one justice's scornfully biased record.

BY Jim Morrison

December 27 2012 2:48 PM ET

George Takei is kind of a hero of mine. Yes, I’m a total Star Trek geek. But’s it not because of his role as Hikaru Sulu. It’s because of his tireless LGBT activism and, most recently, his call for Justice Scalia to recuse himself from the DOMA and Prop 8 cases the Supreme Court recently decided to take.

Recusal is when a judge removes herself or himself from hearing a case because of an actual or perceived conflict of interest. So why should Scalia recuse himself? The answer lies in the fact that recusal isn’t just about conflict of interest, financial or otherwise. It’s more about Scalia’s impartiality and bias. In fact, those very words are in the law regarding the Judiciary and recusal, Title 28 of the US Code:
§ 455. Disqualification of justice, judge, or magistrate judge
(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…
Recently a Princeton student posed a great question to Scalia, asking if he regretted some harsh language he employed in LGBT rights cases. Not only did he not regret the language he used, he answered with a totally repugnant (Takei’s spot-on characterization) equating of homosexuality with…wait for it…murder:
 
"If we cannot have moral feelings against homosexuality,” Scalia retorted, “can we have it against murder? Can we have it against other things? Of course we can. I don’t apologize for the things I raised.”
 
Of course he quickly added that he wasn’t comparing homosexuality with murder, saying that he was making a reductio ad absurdum argument. But that is precicely what he did do by the very act of using “murder” to make the argument. He doesn’t get off the hook by doing something and then saying otherwise. So what language was he referring to? And is it bias? 
 
Two landmark cases that stand out due to Scalia’s involvement are Romer v. Evans and Lawrence v. Texas. In Lawrence Scalia wrote:
 
“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’…the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity”
 
It’s actually hard to read his dissent in Romer and not find candidates for anti-gay bias, an odd aggressive ignorance about the lives of LGBT Americans, and just plain meanness. It’s everywhere, including his punctuation choices. In discussing the Colorado statute at issue, he wrote:
 
“[It] prohibits special treatment of homosexuals, and nothing more. It would not affect…a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State…from making death benefit payments to the "life partner" of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee.”
 
The italics and the derisive, snide quotes around life-partner are his, not mine. The idea of a life partner for yucky gay people obviously doesn’t sit well with him. And “nonhomosexual?” C’mon. Not enough? Continuing from Romer:
 
“…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…” 
 
Pay close attention to this piece of the dissent:
 
“There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident…in heated political disputes over …the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities…have high disposable income…and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers…they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.
 
It is clear to me at least he believes not only that there is some “gay agenda” to teach our optional, alternative “lifestyle,” but also simultaneously that gay people don’t really  exist, that is, there are only people who engage in “homosexual conduct.” And oh, we’re all rich. Yeah, that old myth.
 
“This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality… is evil. I vigorously dissent.”
 
Vigorous indeed. Vigorous animus from him, if you ask me. Taken together, the words he uses when dealing with LGBT parties to cases before the Court show bias and prejudice. Sadly there’s zero chance of recusal, as Supreme Court Justices make that decision for themselves, with no higher authority to review the decision. But I think it’s worth making some noise. Does he have any business deciding the fate of two laws affecting the lives of Americans he thinks don’t really exist or, in the alternative, are no more worthy of protection than murderers? Judges DO pay attention to the political process, and there are a few other Justices on the Supreme Court that are worth reminding (and persuading) where the public is on this and how despicable most find Scalia’s views. On that score, I’m proud to add my voice to George Takei’s.
 
But what do you think? Should he recuse himself? For or Against? Let us know on twitter @forandagainst, here, or via facebook.
 

JIM MORRISON is the host of Here! TV's For and Against.

 

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