Scalia’s Quip Regarding Gay-Marriage Protester Stirs Bias Debate

Same-sex marriage supporter Ryan Aquilina of Washington, D.C., was outside the Supreme Court for Tuesday’s arguments. Photo: Drew Angerer

Spectators to the U.S. Supreme Court hearings on same-sex marriages, Tuesday briefly interrupted as they began shouting;  “If you support gay marriage, you will burn in hell! It’s an abomination!” As the guards hauled the instigator away, the room fell silent as Chief Justice John Roberts called for a brief timeout before calling on the next attorney.

Justice Antonin Scalia quickly quipped; “It was rather refreshing, actually.” his tone sounding jovial as laughter could be heard across the courtroom, yet less noticeable was the shock from many same-sex marriage supporters as well as those unaccustomed to hearing this robed authority endorse any form of disruption.

The government exempts the Supreme Court from the typical ethics applied to other federal judges, so an official investigation into the comments or whether Scalia violated the standards applied to judges that they “promote public confidence in the integrity and impartiality of the judiciary.”, but the “court of public opinions” remains open in regards to his implications. The question in some people’s minds is; Was this comment an expression of bias, or was he attempting to defuse a tense situation with humor?

Many already assume they know Scalia’s opinions regarding gay marriage issues, as the longest-serving justice has a more conservative track-record on his official opinions, but as is noted with comments like “a gratuitous comment that could be heard to legitimize an offensive outburst, tends to diminish popular perceptions of the justices as disinterested neutral observers.” made by Deborah Rhode a Stanford law professor who teaches legal ethics.

Justice Antonin Scalia. Image from

Justice Antonin Scalia. Image from

I imagine Scalia’s comment will bring about many more heated comments regarding his “supposed” bias, but like Morris Ratner, a law professor at UC Hastings in San Francisco stated, Scalia’s comment was no more indicative of bias than his past judicial opinions.

“I wouldn’t have said the comment if I were a justice on the court in a highly charged case,” Ratner said. But, he observed, “judges always reveal their preferences when they rule. The longer someone’s been sitting on the court, the more we know their preferences. I find it hard to get too worked up about this quip.”

It doesn’t take a “rocket doctor” to understand this Supreme Court Justice’s overall view, as one can look back at many of his dissents, including the court’s first gay-rights ruling in 1996 that struck down a Colorado constitutional amendment that would have forbidden state and local laws protecting gays and lesbians from discrimination. Scalia wrote in his dissent that “laws can be validly based on moral disapproval of homosexual conduct,” like other statutes expressing disapproval of “murder, for example, or polygamy, or cruelty to animals.”  From a 2003 ruling Scalia wrote that a state should be able to criminalize sexual behavior that their citizens consider ‘immoral and unacceptable’ also adding that the court majority “has signed onto the so-called homosexual agenda.”

Scalia has never hid from his beliefs as seen in a 2012 talk he had with the conservative American Enterprise Institute where he stated, that supposedly difficult legal problems had simple solutions when viewed in the light of history and the intentions of the Constitution’s drafters.

“Abortion? Absolutely easy,” he said. “Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

Although Scalia’s comments are being “bashed” in typical Mainstream Media fashion, many stating he had no right to make the comment and should be more concerned about appearances of impartiality, some, including gay-rights activist/advocate Evan Wolfson, founder and president of Freedom to Marry and an early organizer for equal-marriage rights are willing to give him a “pass”. Wolfson, who was in the courtroom Tuesday, said he’s willing to give Scalia “the benefit of the doubt, that it was a joke, in the moment, about the tension in the room.”

The more important issue here is the message that the protest itself should be sending to the court; “I think this was a real vivid piece of evidence about why gay people should not have to put their rights up to a vote,” Wolfson said. “Not that everyone’s a hater, but that there is hatred out there.”

I personally think the bottom-line is this; People have the right to their own lives, with as little governmental involvement into it as possible.  We do not need these Justices to rule whether gay-marriage is legal or not, we need to let each state set their own decisions through the voting process, allowing the people of each state decide and let the “chips fall where they may”.

Our founders intended for our Supreme Court to be an amalgamation of political ideology seen differently through ALL the Justices, so they could rule on topics that We the People could not decide for ourselves, and do so in the most impartial forum as possible. You cannot claim the “system isn’t working properly just because they don’t rule in your favor”.

Remember, as with any other endeavor within a capitalized society, the personal opinions of the majority will rise to the top and force those that disagree to comply.  If you don’t want to bake a cake for some “gay” couple (as many might call them), then you shouldn’t be forced to do so, but in the same flip of that coin, you should be ready to accept any of the repercussions that decision may bring your way.



About the Author

Patrick James
Patrick James
Patrick James has worked as a firefighter/EMT for several services throughout the years, as well as a custom metal fabricator, certified personal trainer and chef. Growing up in the rural suburbs of Detroit, it was during his frequent trips to Northern Michigan where he learned of his love for hunting and fishing. Spending several of his adult years in upstate South Carolina, his love of extreme sports took root in the foothills of the Great Smoky Mountains as he learned to rock climb and kayak. "Courage and perseverance have a magical talisman, before which difficulties disappear and vanish into air." ~ John Quincy Adams