In his speech to first-year law students, Scalia asserted that the Supreme Court’s decision affirming the constitutional right of same-sex marriage was, in fact, not rooted in the Constitution and that the reasoning behind the majority opinion could just as easily apply to child molesters as to gays.
“What minorities deserve protection?” Scalia asked. “What? It’s up to me to identify deserving minorities? What about pederasts? What about child abusers?”
“This is a deserving minority,” Scalia said sarcastically. “Nobody loves them.”
Scalia was one of four high court justices who dissented in Obergefell v. Hodges, the landmark April ruling that legalized same-sex marriage nationwide. Scalia called the decision a “threat to American democracy” and a “constitutional revision by an unelected committee of nine.”
The New York Times reports Scalia also told the Georgetown law students that he takes special pride in his dissents.
“I write the dissents for you guys,” he said. “I write my dissents and try to make them not only clear but interesting and even fun.”
That ‘fun’ includes calling the majority opinion in United States v. Windsor, which struck down the federal Defense of Marriage Act (DOMA), which had defined marriage as the union of one man and one woman, “legalistic argle-bargle,” and dismissing the majority’s reading of King V. Burwell, which upheld ‘Obamacare’ subsidies, as “pure applesauce” and “interpretative jiggery-pokery.”
But Scalia’s dissents aren’t always ‘fun.’ He has a history of making controversial comments about the rights of minorities or historically repressed people. In his dissent Lawrence v. Texas, the landmark ruling which struck down anti-sodomy laws, Scalia compared homosexuality to murder and bestiality. Defending Texas’ criminalization of gay sex, he wrote that the state’s anti-sodomy law “undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,'” like laws against “fornication, bigamy, adultery, adult incest, bestiality, and obscenity.”
In 2011, Scalia opined that the Constitution does not guarantee protection against gender-based discrimination.
“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia said in an interview with California Lawyer magazine. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
In 2013, Scalia again rejected the role of the courts in establishing and protecting minority rights, asserting that “it’s not up to the courts to invent new minorities that get special protections” and arguing that such matters should be left up to Congress or the voters to decide.
