Aug Sept 2016
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Dear Straight People: We're Entitled to Our Feelings on Scalia

Scalia

When I heard about Supreme Court Justice Antonin Scalia's death, I didn't feign sadness. My reaction was too inconsiderate to repeat here, but like many people the justice spent his life trying to suppress — namely women and LGBT people — I shed a tear, but it wasn't one of sadness.

Losing Scalia is one step toward moving past our country’s homophobic and sexist past. It means we’re nearer to a world where people like him aren’t keeping down people like me. So I don’t know why it’s impolite to be happy.

The Facebook post that informed me of Scalia’s passing was filled with careful acknowledgements: “Whoa.” “Holy shit. “He spent his life interpreting the Constitution.”

Displeased with a lack of honesty about the man, I chimed in with "Yesyesyes." I was immediately slammed for my response — called "classless" and "piggish," and told I should be "ashamed" of myself. That's funny — those words are strikingly similar to things Scalia has written about me, my partner, and every LGBT person in the country.

You see, it's not just that the justice voted against LGBT rights in every relevant case brought to the Supreme Court — he did, save for the case involving Proposition 8, in which he voted to throw out the antigay measure thanks to a technicality — Scalia always went further, insulting LGBT people and telling us we're worthy of the nation's derision.

In Scalia's dissent in Romer v. Evans — the 1996 decision overturning Colorado’s Amendment 2, which would have made it illegal to implement antidiscrimination protections for gays and lesbians throughout the state — he lamented that “the prestige of this institution” had been used to put discrimination against LGBT people on the same plane as racial or religious bias. “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.”

Scalia’s reasoning always began from the starting place that I’m “evil,” based solely on my sexual orientation. Scalia was fundamentally flawed, and he exacted that mistaken judgment on millions of Americans. No person who still considers discrimination justifiable deserves to be hailed as a great thinker. That’s polite gone mad. 

Read through Scalia's dissent in Lawrence v. Texas, 2003, the decision invalidating antisodomy laws. This isn’t what genius looks like:

"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.’”

When he was on break from robe duty, Scalia took his show on the road, speaking at various universities about the horrors we've brought to the land. At an appearance at Princeton in 2012, Scalia was asked about past comparisons he drew between anti-sodomy laws and those barring murder and sex with animals. 

“If we cannot have moral feelings against or objections to homosexuality, can we have it against anything?” Scalia said, then chided the gay student who posed the question by saying, "I'm surprised you weren't persuaded."

After his death, many pundits and writers danced around Scalia's hateful legacy and worked to memorialize him as a brilliant legal mind. That would be accurate if you believed the Constitution was a "good, old dead" document that should not be adapted with society's maturation. He was also genius if you could understand his reasoning that Justice Kennedy's thoughtful and reasonable opinion in Obergefell v. Hodges — the case that legalized same-sex marriage nationwide — read like "mystical aphorisms of the fortune cookie." Scalia is also a judicial giant if you can get with the belief that African-American students would excel better at "lesser schools."

I clearly am not a recipient of Scalia's fan club e-blast. I'll admit the justice certainly had a florid way with words in a way that, say Donald Trump, does not. Most people just call Trump what he is, though — a bully.

Yes, I feel for Scalia's family and friends, among whom Justice Ruth Bader Ginsburg can be counted. But sad that I live in a world without him in it? No. I simply can't find anything nice to say about a man who spent a considerable part of his life trying to diminish my role in society. If that makes me "classless," so be it. I'm not sure why anyone, the justice included, would be surprised I wasn't persuaded.

NEAL BROVERMAN is the executive editor of The Advocate.

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