Bench Memos

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Re: Elevating the Discourse


That story about Rep. Barney Frank calling Justice Antonin Scalia a “homophobe” ran on Fox News “Special Report” last night too, in the “Grapevine” segment.

I suppose Rep. Frank means something like this: Sexual preference is no more a legitimate moral category for distinguishing people from one another than race is (we’ll set aside for the moment the fact that Frank supports racial preferences for minorities).  Gay is the new black.  Therefore “homophobe” today is the exact equivalent of a Jim Crow racist, circa 1950s.  And, since Rep. Frank thinks that legal categories must track moral ones, with the Supreme Court assigned the job of keeping our constitutional order up to date with our evolving moral understandings, then it follows that any judge who does not actively advance that moral evolution is a “homophobe.”  QED.

Plenty of Americans contest the first of these arguments.  I count myself among them, so I guess I know what Frank thinks of me, if he thinks of me.  But the interesting thing here is, Frank has absolutely no idea whether Scalia should be counted among them.  There is no way to know the justice’s private opinion of homosexuality from the public judicial opinions he has written on matters of “gay rights,” sodomy laws, etc.  All we can know for sure is that he does not believe sexual preference designates a protected category of persons under the law of the Constitution, as far as we can know that law from its original public meaning.  And he assuredly does not believe that the job of the judge is to “tune up” our Constitution so that it hums along in harmony with contemporary “values” about such matters.

Not for the first time, or the last, Rep. Frank literally doesn’t know what he’s talking about.


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