Monday, February 15, 2016

AGLA social on Valentine's Day; how to explain Scalia's idea of "moral opprobrium"?


Sunday night, Arlington’s Gay and Lesbian Alliance held a Valentine’s Day diner at Freddie’s Beach Bar.

Dinner was on the heated, enclosed porch, and I could see a captioned, alarming report from CBS “60 Minutes” playing.

This event occurred one day after Justice Antonin Scalia passed away on vacation in West Texas.
   
Scalia was believed to have vitriolic anti-gay attitudes.  He denies this. What he says in interviews is that he follows what he sees as the letter of the Constitution.  He disagrees with the widely accepted (judicially mainstream) views of substantive due process, and of the idea of strict scrutiny to protect individuals from intrusive local and state (under incorporation doctrine) and federal laws.

But in writing dissents on recent gay-related opinions or concurrences in the past, he mentions a public “moral opprobrium” against homosexual conduct (which would have included the military, of course).  He seems to feel that a public opprobrium alone is enough “rational basis” for democratically passed laws against homosexual conduct, without having to examine or rationalize “what lies beneath” the disapproval.  We’ve seen that paradigm before, such as in Peter Wyden’s 1968 (pre-Stonewall) book “Growing Up Straight”, where public attitudes seem to be their own tautological justification.

Remember the wording in the 1986 Bowers v. Hardwick opinion, where Berger wrote about the “ancient roots” of disapproval of homosexual behavior, without bothering to explain the roots further.
Scalia did “correctly” predict that overturning homosexual-only sodomy laws could pave the way to legal acceptance of gay marriage in only a few years.

Before Stonewall, the opprobrium seemed to result from a mixture of factors:  parents, lacking real individual opportunities, wanting the maximum opportunity for biological lineage (and birthrate is a big factor in Russia’s homophobia today);  a belief that many women would not find husbands and become poor;  a belief that men would not be able to “bond” properly to protect women and children (the military issue).  This could be masked by religion ("evangelical Christianity" or Vatican theology), where people believe what they are told to believe by authorities in their lives. A lot of this has largely gone away for “richer” people with more education and higher living standards.  Public health came into the picture in the 1980s with right-wing speculations about AIDS, but none of that was ever mentioned in any Supreme Court opinions.
  
I can remember some comments about Scalia back in 1986 at a dinner in Dallas (was it at the Bell Pepper) with a PWA, ordering cheese omelet (doing well at the time, but he would succumb in 1987), saying that illness could happen to Scalia, too.  But Scalia’s end seemed to be peaceful, the way anyone would want it.  

Lambda Legal did provide this statement on the passing of Scalia.
 
Kevin Naff, of the Washington Blade, writes in an op-ed (Feb. 19) "Relieved that Scalia can no longer judge us."

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