Bench Memos

LA Times, Home o’ Homophobiaphobia

The editors of the Los Angeles Times tut-tut at Rep. Barney Frank’s use of the word “homophobe” to describe Justice Antonin Scalia, but they really agree with Frank about this, saying Scalia’s opinions reveal his “utter lack of sympathy for gays and lesbians.”

Sigh.  How many times must it be said that is not the duty of a Supreme Court justice to have “sympathy” for anyone at all?  It is his duty to render judgments about the meaning of the law of the land. 

Anyway, none of the quotations from Scalia’s opinions that the LAT drops into its editorial can tell us anything about his private views on the subject of homosexuality.  The editors try to insinuate something sinister about his having referred in Lawrence v. Texas (2003) to the “homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”  But this is a purely factual statement, and a dead-on accurate one to boot.  Does the LAT deny there is such an agenda, or that there are such activists, or that “moral opprobrium” directed at “homosexual conduct” is exactly what they want to eliminate?  Isn’t that, in fact, a pretty objective description of, say, Barney Frank?

Making public policy on the basis of moral opprobrium about this conduct or that is as old as political life itself.  It is, in truth, both unavoidable and the best possible basis for making any policy whatsoever.  (Who wants to step up and say that laws should be devoid of any moral basis?)  Scalia defends the simple, unassailable proposition that nothing in the Constitution forbids such public policy where homosexual conduct is concerned.

The Times’ editors are weirdly interested in “[h]ow Scalia feels about gays and lesbians.”  They should get a life.

Meanwhile, elsewhere in the LAT opinion factory, Tim Rutten writes about the Obama-Notre Dame story as though he believes Dan Brown is a serious historian who unfortunately left out the chapter about the Republican right wing being the secret power pulling the strings of slavish Papists.  I’m afraid Rutten shouldn’t be allowed near a keyboard again until he gets some help.

Most Popular

Law & the Courts

Replacing Ginsburg

While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing. Justice Ginsburg almost certainly had more fans than any ... Read More
Law & the Courts

Replacing Ginsburg

While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing. Justice Ginsburg almost certainly had more fans than any ... Read More
U.S.

Systemic Racism? Make Them Prove It.

I  worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear. In their offhand rhetoric — ... Read More
U.S.

Systemic Racism? Make Them Prove It.

I  worked in the criminal-justice system for a quarter century. It is run, day-to-day, by the crème de la crème of graduates from America’s top law schools. Those institutions wear their progressive bona fides on their sleeves and proclaim it for all the world to hear. In their offhand rhetoric — ... Read More