Yale's Jack Balkin wonders whether Nino Scalia's denunciation of "the homosexual agenda" will lead future generations to regard him as the moral equivalent of Jesse Helms or Trent Lott--just another turn-of-the-twenty-first-century bigot:
Posted by DeLong at July 11, 2003 11:45 PM | TrackBackBalkinization: There has been considerable discussion about Justice Scalia's accusation that the Lawrence majority had signed on to "the so-called homosexual agenda." I believe what has irked some people is that the expression "the homosexual agenda" has a history. It is a form of code often used by Jesse Helms and other social conservative politicians to whip up resentment against moderates and liberals who support gay rights. The use of the term "homosexual agenda" has been a shrewd way of intimating without overtly stating that people who supported gay rights were somehow disloyal to the country (like the hidden communist agenda) because they were assisting in the destruction of America by destroying its moral fibre, or extremist, because they supported a deeper, hidden agenda whose real goals cannot be openly announced and are instead disguised in the plausible sounding garb of equal rights.
Here's a representative quote from Sen. Helms in support of a bill he introduced to roll back President Clinton's executive order prohibiting discrimination against gays in federal employment:
Mr. President, for many years the homosexual community has engaged in a well-organized, concerted campaign to force Americans to accept, and even legitimize, an immoral lifestyle. This bill is designed to prevent President Clinton from advancing the homosexual agenda at the expense of both the proper legislative role and the free speech rights of Federal workers.
From the standpoint of constitutional theory, what is interesting here is the extent to which such rhetorical appeals have any place in a Supreme Court decision. If Justice Scalia began speaking in code in a case involving race relations, one assumes he would be roundly condemned. But the social movement for gay rights has not won out in the same way that the Civil Rights Movement has. (As Trent Lott recently learned. Remember that Lott also said that gays were mentally ill like kleptomaniacs, and he wasn't thrown out of the Senate Majority Leader's position for saying *that.*).
If, as I suspect, in the long run, homosexuals are going to gain legal protection by legislatures and courts from most forms of discrimination, Scalia's accusation that the Court is marching to the tune of the homosexual agenda and Lott's equation of homosexuality with kleptomania will take on a very different cast for future generations...
Last year, Justice Kirby of the High Court of Australia was attacked in parliament by a social conservative. Kirby outed himself some time ago. The interesting thing was that his assailants went to great lengths to claim they were not attacking his sexual orientation but an alleged misuse of an official car to pick up a hustler. The allegations collapsed very quickly, but not before the prime minister had started muttering about removal from office.
Oz has a broad media consensus that sex scandals are irrelevant to public life and therefore do not get reported, but the media tied themselves in knots trying to define this as a corruption scandal rather than a gay scandal.
Posted by: Alan on July 12, 2003 11:20 AMI think it's a close race between "the so-called..." and "pun intended" for the award of surest litmus for nit-wits.
Posted by: David Lloyd-Jones on July 12, 2003 11:48 AMWill Scalia be regarded as a bigot? Yes. That comment about how "most people" don't want a homosexual as a business partner (did David Souter start coughing in the background as his colleague said that?), or a family member or whatever was deeply offensive to me (who has had gay business partners and family members) and, I think, will soon be embarassing to most people. As embarassing as if the judge in the Sacco-Vanzetti case, say had said that most people don't think greasy thieving wops are capable of understanding the law.
Posted by: Mike G on July 12, 2003 11:50 AMAs has been noted elsewhere, the inclusion of "so-called" is something that one would use to signal a *lack* of endorsement of the use of the term. However, I think that in Scalia's case, he's merely being exact.
In any event, I am less than overwhelmed by Balkin's insight. Will history likely view Scalia badly in this regard? Probably. But so will it also likely view many others--probably some of us--badly for some other publicly expressed and influential opinions. Say, on animal rights. Certainly the status of women around the world, and even in the US, is metaphorically antebellum, at best.
There are two kinds of people that deserve praise for moral courage in stating and acting upon their beliefs. The first kind are the people who champion unpopular causes long before the cause is at least marginally socially acceptable. Early American abolitionists are an example of this. Contemporary animal rights activists are also an example of this (regardless of whether they're "right" or not). The second kind of person is the kind that refuses to accept a moral position *after* it has become socially conventional. I wouldn't say that gay rights have reached that stage yet, but it certainly isn't easy to oppose gay rights in the US today. In that sense, Scalia probably deserves some credit for moral courage.
The one group that deserves no credit for moral courage are groups like ourselves that embrace conventional or near-conventional moral positions and excorciate those who do not. That's easy.
Translation: I spend a lot less time thinking about how foolish or even hateful people like Scalia will look to future generations than I do thinking about what positions *I hold* that will look foolish or hateful to future generations.
Posted by: Keith M Ellis on July 12, 2003 03:04 PM"The second kind of person is the kind that refuses to accept a moral position *after* it has become socially conventional. I wouldn't say that gay rights have reached that stage yet, but it certainly isn't easy to oppose gay rights in the US today. In that sense, Scalia probably deserves some credit for moral courage."
This is true for differences in style, taste and personal beliefs. Decisions in the private realm. If one wishes to live out their conservitive beliefs in the face of social concensus to the contrary - one can admire. It usually is not true of public figures who hold a position beyond its due date. Communists in Russia today, an aparthied supporter in South Africa, segregationalists in the USA, etc.. are seen for what they are: People who would limit the priviledge of human rights to those like them. Scalia clearly falls into this category and will be remembered as such.
Redicule him with conviction. Remember his inappropriate nature when a new mind must fill the bench.
Posted by: Scott McArthur on July 12, 2003 04:30 PM"It's not 'spic' or 'ni**er' anymore. They [Republicans] say, 'Let's cut taxes.'" - Charles Rangel
If Rangel can say something like that without getting kicked out of Congress, why should ANYBODY be thrown out for nasty bigoted invective?
There's plenty of research that challenges the notion that homosexulaity is, in psychiatric lingo, a normal variation. Lott would do better to quote such findings, some of which is available through the NARTH website http://www.narth.com/ than to make wacky comparisons - and ONLY if he's discussing a specific policy to which the debate is genuinely relevant.
Posted by: Alan K. Henderson on July 13, 2003 12:34 AMMaybe in these circles it doesn't take moral courage to support equal treatment for gays, but in a lot of the US it does.
While I would like to be courageous if I need to be, I certainly am not going to choose my positions in order to be courageous. And if a bigot says something hurtful and wrong, I am going to call him on it. It doesn't necessarily take bravery, but it still is the right thing to do.
Posted by: MDtoMN on July 13, 2003 08:55 PM