Supreme Court Justice Antonin Scalia's dissents in LGBT rights cases can be accurately described as judicial hissy fits.
He uses expressions seldom seen in legal writings, such as "Kulturkampf," "legalistic argle-bargle," and "the black-robed supremacy." In his dissent in Obergefell v. Hodges, the decision in which the court's majority ruled for nationwide marriage equality, he advised asking "the nearest hippie" if marriage affords freedom of intimacy. Sorry, Justice Scalia, but it's kind of hard to find hippies these days.
We've collected some of Scalia's greatest fits from four LGBT-related cases. We'd like to bring you some "applesauce" and "jiggery-pokery" too, but those were in his Obamacare dissent. And you'll notice the Proposition 8 case is missing from these fits, but that's because Scalia actually sided with the majority in that decision -- but it involved whether the supporters of the anti-marriage equality measure had standing to defend it in court, not the merits of the measure itself.
Lest the cantankerous justice restrain his opinion on marriage equality to cases actually addressing the freedom to marry, it's worth noting that Scalia managed to get a dig in at the court's pro-equality majority on the last day of this session, in a case about lethal injection and the broader constitutionality of the death penalty.
The Monday after the court issued its landmark ruling in Obergefell v. Hodges, Scalia admonished his colleagues from the bench in an outburst MSNBC called "extraordinary."
"Last Friday, this court took away from the people the right to decide on same-sex marriage on the basis of their own policy preferences," Scalia lamented after his colleagues dissented on an opinion where he was in the majority. But, he added, "unlike opposite-sex marriage, the death penalty is approved by the Constitution."
We presume the honorable justice meant to say "same-sex marriage," unless he'd like to have the high court vote on the right of straight couples to marry.
From Scalia's dissent in Romer v. Evans, 1996, the decision overturning Colorado's Amendment 2, which would have prevented enactment or enforcement of gay-inclusive antidiscrimination laws:
"The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a 'bare ... desire to harm' homosexuals ... but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.
"In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago ... and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. ... This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality ... is evil. I vigorously dissent."
Scalia's dissent in Lawrence v. Texas, 2003, the decision invalidating antisodomy laws:
"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called 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. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. ...
"One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is 'an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.' ... It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as 'discrimination' which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream.'"
Scalia's dissent in United States v. Windsor, 2013, the decision striking down section 3 of the Defense of Marriage Act, which kept the federal government from recognizing same-sex marriages:
"The Court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges' intrusion into their lives. They gave judges, in Article III, only the 'judicial Power,' a power to decide not abstract questions but real, concrete 'Cases' and 'Controversies.' Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here? ...
"The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive. ...
"The real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by 'bare ... desire to harm' couples in same-sex marriages. ... How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status."
Scalia's dissent in Obergefell v. Hodges, 2015, a decision that brought marriage equality to the entire United States:
"Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact -- and the furthest extension one can even imagine -- of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...
"Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). ... To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. ...
"The opinion's showy profundities are often profoundly incoherent. 'The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.' (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.)."
