That’s according to Scalia himself. Speaking at Dallas’s SMU on Monday night, Scalia claimed that he has never expressed his legal opinion on marriage equality.
Before you start celebrating another SCOTUS swing vote, let’s think about just how much of Scalia’s own original-intent he’s overlooking. Here are some of his greatest hits.
Starting with the goldmine of his Lawrence v. Texas dissent in 2003:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
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.
He defended that decision last October, saying:
The death penalty? Give me a break. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on, for 200 years, it was criminal in every state.
Speaking at Princeton in December, he restated a legal parallel between homosexuality and murder:
If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?
While Scalia has never ruled directly on the issue of marriage equality, he has made his opinion abundantly clear. For if he can deny us our basic humanity and the dignity of our identity, than he will certainly deny us the right to government recognition of our relationships. For him, marriage equality is just one more tumble down the slippery slope towards moral decay.
On matters that are, in his opinion, not about fundamental human rights guaranteed explicitly by the Constitution, Scalia abdicates his judicial responsibility, deciding instead that these issues should be decided by the people. He says, “My Constitution is very flexible: There’s nothing in there about abortion . . . It’s up to the citizens. The same with the death penalty.”
Supposing he can swallow his personal distaste for homosexuality, this philosophy might introduce an interesting opportunity in one of the two cases currently before the Court. He’s bound to embrace Prop 8, since the majority chose discrimination on the ballot. But if Scalia truly believes this is a question for the people to decide he would have a hard time upholding DOMA. To do so would be a denial of the choice already made by the people of nine states, either by direct ballot or through elected representatives. Such a decision might be the political redemption story of a generation.
More likely, he’ll throw a fit and write an opinion with more than a few incendiary comparisons to bestiality He will probably say that Congress got us into this mess so Congress has to get us out, once again abdicating the highest court’s responsibility to ensure basic freedoms the People might deny.
All of which is no mystery at all, leaving us with the same nail-biting numbers we’ve had all along.