We Are Not Murderers, Mr. Scalia
Why Justice Scalia Should Recuse Himself from the Marriage Equality Cases
This past Monday, when speaking at Princeton University, Justice Scalia of the U.S. Supreme Court made a grotesque and astonishing statement. In response to a student’s question about his unyielding support of laws that would ban consensual sexual relations between gay people, even in the privacy of their own homes, Justice Scalia responded, “If we cannot have moral feelings against homosexuality, can we have it against murder?”
That a sitting U.S. Justice could draw any kind of parallel between an act of love and tenderness on the one hand and an act of ultimate violence and evil on the other is more than disheartening; it sends a message to LGBT people everywhere that a member of our highest court cannot see us as anything but criminals, simply because of who we are and who we love. How can any gay couple coming before this court seeking equal treatment under the law have any realistic hope that Justice Scalia will fairly apply the rule of law and the principles of our Constitution, when all he sees before him are persons who should be locked up?
Seventy years ago, the Supreme Court upheld President Roosevelt’s incarceration of 120,000 Americans of Japanese ancestry–two thirds of whom were U.S. Citizens–simply because we looked like the people who bombed Pearl Harbor. I was among those citizens. As I stated in a recent interview with Thomas Roberts on MSNBC (see the clip here), Justice Scalia today continues to espouse a similar prejudicial and offensive bias that is repugnant to the very principle of equal treatment and due process.
Justice Scalia had the unprofessional gall to make his preconceptions and animus toward LGBT persons public and crystal clear a mere few days after the Court agreed to review the cases. As he well knows, judges must avoid not only bias in their decisions, but the appearance of bias in their decision making, lest the judiciary fall even further into discredit in the eyes of the public. Now Justice Scalia should do the right thing and admit he cannot rule in this case fairly and impartially, and he should recuse from the cases. Should he fail to do so (and I have little expectation that he will), I hope and trust the fair-minded members of the Court will consider his poisonous preconceptions as unworthy of support–and toss them unceremoniously to the dungheap of history where they belong.