Is Supreme Court Justice Antonin Scalia a Homophobe?
Daniel R. Pinello
[Note the 2013 Update at the End of This Essay]
Justices of the United States Supreme Court write their official opinions with utmost care, particularly with regard to their choice of language. Diction is probably more deliberate in the Court than in any other enterprise relying on written communication.
With that reality in mind, I’ve conducted an empirical exercise that focuses on how Supreme Court justices describe classes of litigants. I use a measurement that I call a “preferred-reference ratio.”
As an introduction to the concept, consider the evolution of diction in how the modern Court has referred to African-Americans. In the 1960s, the justices’ exclusive term of reference was “Negro” or its plural. For instance, “Negro(es)” appears 31 times in the combined opinions of Heart of Atlanta Motel v. United States and Katzenbach v. McClung (the 1964 companion cases upholding the constitutionality of the Civil Rights Act of 1964), while “black” isn’t there once.
Two decades later, however, the Court changed. The last justice writing for the Court who used “Negro” as his or her own (i.e., not in case citations or quotations from books, articles, etc.) was Justice Harry Blackmun in Cleavinger v. Saxner (1985).
Today, “black” and “African-American” are the exclusive references. In the opinions of Grutter v. Bollinger (the 2003 decision approving of universities’ use of racial preferences in developing a racially diverse student body), for example, the former term arises 42 times and the latter, 15. That produces a ratio of 15/42, or .357, for “African-American” to “black.” (I grant that one case is a small sample, but Grutter is long enough – 25,000 words – to be reasonably representative.)
I call the ratio “preferred reference” because one of the terms is the frame of reference generally selected by the group at issue. So for the race example, “African-American” is preferred over “black” for self-identification. (I assert this with eleven years of classroom observation, teaching at an urban public university whose student population is at least one-third African-American. Undoubtedly, there’s other empirical evidence addressing this point. Since the race example here is only illustrative, however, the accuracy of my observation about the preference of “African-American” isn’t a central theme of this essay.) Relying on Grutter as a sample, then, I conclude that justices use the preferred reference about 26 percent of the time (i.e., 15 preferred uses among 57 total, or .263).
Now I turn to the justices’ use of “homosexual” and “gay and lesbian” in their official opinions. The Supreme Court has decided four appeals of major importance to gay and lesbian Americans since Justice Antonin Scalia joined that bench in 1988: Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), Romer v. Evans (1996), Boy Scouts of America v. Dale (2000), and Lawrence v. Texas (2003). Hurley recognized a First Amendment right of the sponsors of Boston’s annual Saint Patrick’s Day Parade to exclude a gay-lesbian-bisexual organization’s marching under its own banner in the parade, despite Massachusetts’ public accommodations law that prohibits discrimination on the basis of sexual orientation. Romer held that a state constitutional amendment prohibiting the inclusion of sexual orientation in municipal antidiscrimination ordinances was unconstitutional. Dale stated that the First Amendment protected the Boy Scouts’ decision to discharge a gay man in New Jersey as a Scout leader, despite a New Jersey law forbidding discrimination on the basis of sexual orientation. Finally, Lawrence struck down all state consensual sodomy laws as unconstitutional and overruled Bowers v. Hardwick (1986).
In Hurley, Romer, Dale, and Lawrence, I count 149 references to “homosexual(s)” or “homosexuality” and 36 to “gay” or “lesbian” among the opinions in those cases by Justices Anthony Kennedy, Sandra Day O’Connor, William Rehnquist, David Souter, John Paul Stevens, and Clarence Thomas. (I counted each mention in the opinions of the phrases “gay and lesbian” or “lesbian and gay” as one reference, not two separate ones.) Thus, the preferred-reference ratio of “gay and lesbian” to “homosexual” for all justices with the exception of Justice Scalia is 36/149, or .242. Hence, all justices except Justice Scalia use the preferred term in this category about 19 percent of the time.
In contrast, in his two relevant opinions (dissents in Romer and Lawrence) in the Supreme Court’s gay rights jurisprudence since 1988, Justice Scalia uses “homosexual(s)” or “homosexuality” as his own 109 times, while “gay and lesbian” just once (at the end of his second footnote in Lawrence). (Indeed, I’d wager that the footnote reference was not intentional by Justice Scalia, but rather the product of a law clerk that wasn’t caught by the Justice himself, because Justice Scalia otherwise scrupulous puts quotation marks around “gay.”) Hence, Justice Scalia has used the term of identification preferred by gay people themselves less than one percent (.009) of the time among 110 occasions in which he had reason to make a reference.
For a contrast with another ideologically conservative justice, Chief Justice Rehnquist’s majority opinion in Dale has a preferred-reference ratio of 6/23, or .261. As another comparison, consider the three dissenting opinions in Goodridge v. Department of Public Health, the 2003 ruling by the Massachusetts Supreme Judicial Court declaring that the state’s conferral of civil marriage only on opposite-sex couples violated the Massachusetts Constitution. One can reasonably believe in the fidelity of those three dissenting state justices’ allegiance to the legal and constitutional arguments opposing what the Goodridge majority did to sanction same-sex marriage. Moreover, one can sensibly assume that Justice Scalia would approve of those dissents. Yet the preferred-reference ratio for the three Goodridge dissents is 7/7, or 1.00 – a rate more than one hundred times greater than Justice Scalia’s.
In sum, my empirical exercise produces these preferred-reference ratios:
With regard to race:
All justices – .357
With regard to sexual orientation:
All justices except Justice Scalia – .242
Justice Scalia – .009
Accordingly, there is a remarkable 27-fold difference in preferred-reference ratios for sexual orientation between Justice Scalia and his Supreme Court colleagues (Justices Rehnquist and Thomas included).
Now you may ask two reasonable questions. What evidence is there that “gay and lesbian” is indeed the preferred reference in the relevant community? And assuming there is such evidence, was Justice Scalia familiar with it?
An absolute answer to the first question in nearly impossible to determine as an empirical matter, because the entire relevant population cannot be observed effectively, as Riggle and Tadlock (1999) explain:
The most difficult part of research directly investigating gays and lesbians is identifying lesbians and gays. The gay and lesbian population is “invisible.” Whether a researcher meets someone face to face, makes phone contact, or gives out anonymous confidential questionnaires, that researcher remains at the mercy of the participant to self-identify as lesbian or gay.
However, substantial collateral evidence of the preference exists to serve as a proxy for, say, a comprehensive national survey of the country’s lesbian and gay population.
An excellent reflection of American cultural, political, and social communities are the interest groups and other organizations that serve them. Such groups are usually utterly dependent on the financial support of their targeted populations and can’t survive without their approval.
So what names do groups within the homosexual/gay/lesbian community use to attract dues-paying members and other financial contributors? Do they choose “homosexual” or “gay and lesbian” to market their services to that community?
I’ve compiled a partial list of such national organizations as an appendix at the end of this essay. (Adding state and local groups would increase the list by many fold.) Judge for yourself what the answer to the question is. Indeed, I believe that there’s about as much affinity within the lesbian and gay community for “homosexual” and “homosexuality” as descriptive terms as there is today in the African-American community for “Negro.”
Moreover, such labels make a difference. For example, in May 2005, the Gallup Organization found, in a split-sample experiment testing alternative terms for referencing lesbians and gay men, that the percentage of Americans saying that this population should be hired as high school and elementary teachers was nine to ten points higher (71 versus 62 percent for high school, 64 versus 54 percent for elementary) when the question was asked about “gays and lesbians” rather than “homosexuals.”
With regard to my second question above (concerning Justice Scalia’s knowledge of the gay and lesbian community’s self-identification preference), let’s assume, for the sake of argument, that Justice Scalia had virtually no prior knowledge of that preference before his participation in the Supreme Court’s gay rights decisions starting with Hurley in 1995.
The official reports of the Court reveal that these organizations filed legal briefs with the justices in Hurley, Romer, Dale, and Lawrence:
Gay & Lesbian Advocates & Defenders
The Gay & Lesbian Alliance against Defamation
The Gay and Lesbian Lawyers Association of South Florida
Gay and Lesbian Lawyers of Philadelphia
The Gay, Lesbian and Straight Education Network
Gays and Lesbians for Individual Liberty
The Lesbian and Gay Bar Association of Chicago
The Lesbian and Gay Law Association of Greater New York
The Lesbian and Gay Lawyers Association of Los Angeles
The Mennonite Council for Lesbian and Gay Concerns
The National Center for Lesbian Rights
The National Gay & Lesbian Task Force
The National Lesbian and Gay Law Association
Parents, Families & Friends of Lesbians & Gays
Presbyterians for Lesbian & Gay Concerns
The United Church Coalition for Lesbian & Gay Concerns
United Methodists for Gay, Lesbian and Bisexual Concerns
The World Congress of Gay and Lesbian Jewish Organizations
Whereas, not one group with “homosexual” in its name filed a brief in those cases.
In other words, Justice Scalia had good reason to know that every one of at least 18 organizations advocating on behalf of the attentive community in the appeals before the Court preferred the use of “gay” and “lesbian” as identifying terms.
Don’t those facts alone inform a dispassionate observer that the community of interest with which he or she is dealing prefers “gay and lesbian” as a descriptive and not “homosexual”? Yet Justice Scalia still gave the latter the nod 109 out of 110 times when he needed to make reference to that community in his Romer and Lawrence dissents.
Moreover, the reason for Justice Scalia’s inflexible use of “homosexual” and “homosexuality” doesn’t lie with lack of imagination or linguistic capacity. Indeed, the Justice is a gifted wordsmith. Consider the examples of his verbal prowess highlighted in these quotations:
As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control. “Most importan[t]” among these controls, the Court asserts, is the Attorney General’s “power to remove the counsel for ‘good cause.’” This is somewhat like referring to shackles as an effective means of locomotion.
From Morrison v. Olson (1988)
It was an arguable question today whether §188.029 of the Missouri law contravened this Court’s understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it – and even then (under our newly discovered "no broader than necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.
From Webster v. Reproductive Health Services (1989)
Thus, “same-sex intimacy,” for example, as an alternative expression for “homosexual sodomy” ought not be an undue linguistic hurdle for Justice Scalia. All the same, he uses “homosexual sodomy” 14 times in the Lawrence dissent without variation. Interestingly, a federal judge recently stated that, “[the] use [of 'homosexual sodomy'] is ill-advised and outdated as well. As I see it, the term 'homosexual sodomy' is pejorative. It should be scrubbed from court decisions in the future.” (Muth v. Frank, U.S. Court of Appeals, Seventh Circuit, 2005.)
* * *
Compared with that of both his colleagues on the Supreme Court and the dissenting justices in Goodridge, Justice Scalia’s behavior on this issue of respect for a litigant class is an extreme outlier.
Admittedly, evidence of personal hostility toward a group is difficult to observe at a distance. What I offer here is circumstantial and subject to interpretation.
Nonetheless, I do believe a reasonable inference of antigay animus by Justice Scalia can be made from these data.
Update: Even a 77-Year-Old Supreme Court Justice Can Evolve
Justice Scalia's dissent in United States v. Windsor criticizes the majority opinion for imputing that the congressional passage of the Defense of Marriage Act was motivated, inter alia, by an intention "to brand gay people as 'unworthy.'"
That's right. As of 2013, Justice Scalia no longer refers to lesbians and gay men exclusively as "homosexuals." In fact, his Windsor opinion is filled with references to "same-sex." Apparently, he now sometimes thinks that gay men and lesbians are, well, people.
Wonders never cease.
Also on this website:
A Ranking of Lesbian-and-Gay-Friendly Colleges and Universities in the United States
America's Struggle for Same-Sex Marriage
Casebook on Sexual Orientation and the Law
Gay Rights and American Law
Advice for Getting Into Law School
Riggle, Ellen D. B., and Barry L. Tadlock. 1999. “Gays and Lesbians in the Democratic Process: Past, Present, and Future.” In Ellen D. B. Riggle and Barry L. Tadlock (eds.). Gays and Lesbians in the Democratic Process: Public Policy, Public Opinion, and Political Representation. New York: Columbia University Press.
A Partial List of National Interest Groups and Other Organizations (not otherwise listed in the essay above) Within the Homosexual/Gay/Lesbian Community:
Affirmation: Gay & Lesbian Mormons
The Association of Gay & Lesbian Psychiatrists
Astraea Lesbian Foundation for Justice
The Center for Lesbian and Gay Studies, City University of New York
The Committee on Lesbian and Gay History, American Historical Association
The Federation of Gay Games
Funders for Lesbian and Gay Issues
The Gay & Lesbian Association of Choruses
The Gay & Lesbian Medical Association
The Gay & Lesbian National Hotline
The Gay & Lesbian Victory Fund
The Gay Men’s Health Crisis
The Gay Officers Action League
The Gay Realty Network
The Homosexual Information Center (established 1965)
The Institute for Gay and Lesbian Strategic Studies
The International Gay Bowling Organization
The International Gay Rodeo Association
The Lesbian & Gay Band Association
The Lesbian & Gay Country Music Association
The Lesbian Health Fund
The Lesbian Herstory Archives
The National Association of Catholic Diocesan Lesbian & Gay Ministries
The National Association of Lesbian, Gay, Bisexual & Transgender Community Centers
The National Archive of Gay, Lesbian, Bisexual & Transgender History
The National Gay & Lesbian Chamber of Commerce
The National Gay Newspaper Guild
The National Latino/a Lesbian & Gay Organization
ONE National Gay & Lesbian Archives
Senior Action in a Gay Environment