Justice Scalia at Rhodes College in Memphis – Sept. 22, 2015

The bottom line is that LGBT citizens are better off without Antonin Scalia on the Supreme Court. One need look no further than Lawrence v. Texas. The six justices in the majority held (on June 26, 2003) that laws criminalizing homosexuality were unconstitutional. In dissent Scalia wrote:

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.

Scalia went on to say that he had nothing against homosexuals (could have fooled me). He just wanted gay rights to be the product of the democratic process. Exactly why he would want gay rights to be submitted to a vote in, say, Alabama is irrelevant.Whether or not this was an extension of his Catholic faith is of no consequence whatsoever.

Twelve years to the day later Scalia’s dissent in Obergefell v. Hodges was consistent. He claimed that the intent of the 14th Amendment was not to afford gay people the right to same-sex marriage and that it should have been afforded through the democratic process. The fact that the same logic would invalidate the unanimous decisions in Loving v. Virginia and Brown v. Board of Education demonstrates that, irrespective of his intellect, Scalia was a regressive antiquity.

Going forward President Obama is an extremely smart man and a constitutional scholar. I have read many suggestions to outmaneuver the GOPers. One of those is to make a recess appointment of a liberal who will serve until the Senate confirms Obama’s eventual nomination. I suppose that appointing someone like Judge Richard Posner from the Seventh Circuit or even Elizabeth Warren would make the Senate highly motivated to confirm a more moderate nomination. If he wants less furor Obama could even ask retired Justice Breyer to return temporarily. That would probably get the Senate Republicans off their asses. Sure, they would bitch and moan but, at this point, do we really care?

In case you did not realize how crucial the 2016 election is.

I think that the entire Republican field has pledged to nominate Scalia clones. That is something that we cannot allow to happen. By the end of our next president’s first term, three justices of the Supreme Court will be in their eighties.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.