The Ongoing Corruption Of Language

Shorter Barney Frank - Scalia is a homophobe because he is unwilling to back the GLBT agenda.

Barney Frank takes time out from harassing financial services executives to explain why he called Supreme Court Justice Scalia a homophobe:

My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability.

To his credit (and our amusement) Frank produces what he considers to be two damning excerpts. Let's see.  Here, per Frank, is one example where Scalia "made it clear" that sex discrimination "is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability":

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

I don't find support for Frank's assertion that Scalia believes homosexuality "deserves" to be treated with disapproval; I find a stern reminder that the public deserves courts that wait until legislatures legislate before creating new rights.

Oh, well - Frank is not interested in a frank exchange of views.  His goal is to shut down debate by branding everyone on the other side as a homophobe.  Intimidating Scalia seems an improbable task, but if Frank can persuade some judges somewhere to opine carefuly or else, then he wins.

MORE:  Ann Althouse had a pre-rebuttal yesterday in respomse to Frank's radio show.

Comments

[Cecil Turner]

A "homophone"? What, does he lisp? Quick, say "shibboleth."

[Ignatz Ratzkywatzky]

The Ongoing Corruption Of Language

There, that's better.

[clarice]

Ann Althouse did a find job with this yesterdayy. Perhaps, as she suggests. Frank has a reading disability. Or maybe he's just a liar.
Either way.....

[MayBee]

Frankophile!

[Appalled]

OK, Tom. You left out one of Frank's Scalia quotes (it's from a 1996 dissent), and I doubt your loyal readers are going to go off to the HuffPo to find it. And that's not entirly fair, because Frank has some grounds for his accusation here:

First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers.....

The tone here sounds like George Sanders -- just because it is well-written does not make it any less a sneer.

[Cecil Turner]

The tone here sounds like George Sanders -- just because it is well-written does not make it any less a sneer.

Oh, please. It's a rather windy recapitulation of "hate the sin, love the sinner." Scalia's point is that it is perfectly legitimate for the people of Colorado to legislate against behavior they find inappropriate, but not to legislate against people with whom they disagree; and the former is what the law in question amounted to, not the latter as implied by the Court's decision. Might fault it economy of style, but the logic is impeccable. Your ad hominem is pointless, as is characterizing it as a "sneer."

[Fresh Air]

He "sneers"? Re-read that, please. He is explaining the basis for societal disapproval, just as he clarified in the opinion TM quoted from above how the nation, quite justifiably in his view, changes its views on morality from time to time.

A "sneer," as you put it, is simply a loaded phrase to try to import something other than what the plain language says.

Scalia is very clear here. There are reasons for society's disapprobation of homosexual conduct. These reasons may not continue to hold sway indefinitely given changing mores of the population. HOWEVER, judges are not free to run out in front of these shifting beliefs and declare a previously codified position illegal, immoral or unconstitutional. This is a job for lawmakers and lawmakers alone.

Why is this exercise so hard for liberals?

[Charlie (Colorado)]

Appalled, my only objection to homosexuality is that I'm so damned straight when I have had guys hitting on me for years. None the less, the argument that there is something appalling (heh) about Scalia noting the existence of moral objections to homosexuality seems just a bit strained.

[boris]

Perhaps Appalled is reacting to the absense of sneer in the opposite direction.

[Jane]

Oh, please. It's a rather windy recapitulation of "hate the sin, love the sinner."

That was exactly my impression too.

[Appalled]

Fresh Air:

It's not what Scalia says, it is how he says it. "But I had thought that one could consider certain conduct reprehensible--murder, for example, or polygamy, or cruelty to animals--and could exhibit even "animus" toward such conduct. " Try saying something like that to your wife (or husband) sometime, when you are having a conversation on the family finances, or how to raise the kid. Think they might take offense?

Charlie:

It is a pain when the guys hit on you and the girls won't. When I finally found a girl who would, I married her.

As for the paragraph -- c'mon, if you can't recognize the sarcasm, you aren't the same Charlie who was settling PoFarmer's hash all up and down the previous threads.\

Cecil:

It's not what is said, but the very sarcastic tone that might suggests Scalia finds homsexulaity and homosexuals immoral. If you are Barney frank (not something I'd wish on anyone), you might be offended.

I think calling what was written a sneer quite accurate. I don't even think Scalia would disagree with that.

[MayBee]

It's not what is said, but the very sarcastic tone that might suggests Scalia finds homsexulaity and homosexuals immoral.

He is stating the fact that some do, in fact, find homosexuality immoral. It isn't illegal or un-American to think of homosexuality as immoral.
Do you think it is, Appalled?

(I neither find homosexuality immoral nor find those who do unAmerican).

[boris]

tone that might suggests Scalia finds ... homosexuals immoral

Reread then:

Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible ...

Clearly states the opposite. You're reading context into it colored by apparent animus toward Scalia like some prissy old scold.

[Tom Maguire]

My belief is that Scalia's snark is directed at the judges whose opinion he is trashing, not the gay community.

The force of his argument would fade a bit if he wrote:

But I had thought that one could consider certain conduct reprehensible--jaywalking, for example, or tax evasion, or downloading music illegally--and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here...

His point is that people are entitled to their own animus; illustrating that with silly examples does not work so well.

Nor would it matter - Frank would be screaming that he was trivializing the travails of the gay community.

You left out one of Frank's Scalia quotes (it's from a 1996 dissent), and I doubt your loyal readers are going to go off to the HuffPo to find it.

I know you know this is not Greenwald's site. Anyway, Frank said Scalia's views "come[] out most clearly in his very vigorous abjection to the court's decision to block a criminal prosecution against two men who had consensual sex in the privacy of their bedroom.". And it is not clear at all.

[sbw]

I thought that Scalia was damning both moral superiority AND moral relativism.

What a smart comparison!

With one ostensible sneer, he said, hey, you dolt, it IS possible for someone to have an opinion the differs from yours and, secondly, when that person disagrees, it should not necessarily be criminal simply because you disagree with that opinion.

Hate crime legislation is PC BS. A crime is a crime because it is a crime.

[bgates]

Scalia says "such 'discrimination' is mandated by federal statute"; Frank reads that as "sex discrimination 'is very much in society's interest '". Of course Frank would think anything mandated by federal statute is in society's interest.

[Appalled]

TM:

The entire dissent on the Colorado case is here. It's in that category of writing that can be called insensitive, and I can see why someone like Barney Frank would be offended. I wouldn't call Scalia "homphobic" because I don't see that he fears gay people. But he sure does not like them much.

(I love the analysis of how gay folk tend to be richer than average, and might try to influence the political system. If you substituted the word Jewish for gay, you'd have something that would probably be called anti-semitic.)

[Fresh Air]

Appalled--

This is really a pitiful defense. It's not what he said, it's how he said it. Okay, you can interpret however you want, but that doesn't make it what he meant. DItto, carrying water for Frank for being "offended." Again, fine. But saying someone is offended and saying they are justified is blatantly misrepresenting their statements are completely different things. Get your emotion out of your reading comprehension and you will start to see things much more clearly.

[Jim Ryan]

The reason Justice Potter Stewart accepted that the Connecticut law against contraceptives was Constitutional was because he thought it was a good law. Oh, wait....

There are hoards of smart people who say, "Screw the Constitution, just decide cases according to my view of what makes common sense." A hardcore libertarian friend of mine, who thinks most taxation is outright theft, voted for O because he thought O would appoint justices who like gay marriage. I objected, but in his reply he scoffed at the notion of an original meaning of the Constitution and he excoriated Potter Stewart.

[Foo Bar]

I agree that Frank was wrong to claim that Scalia said that the Texas anti-sodomy law is a good law. He does not say this in his Lawrence vs. Texas dissent.

Nonetheless, it doesn't seem like a crazy inference to suspect that he did, in fact, approve of that law. Unlike Thomas, he declined to say that he thought the law was bad but constitutional. Now, one might argue that Scalia is not inclined to express his opinion on whether he thinks a law is a good law (which I agree is distinct from questions of constitutionality). Ah, but he is so inclined. He's indicated in other situations that certain things are "bad but constitutional" and even fantasized about judges having a stamp that declared laws as such. Here's an article about a talk he gave last year:

Of torture, Scalia said: "It’s a bad thing to do. But not everything that is bad is unconstitutional."

He suggested that every federal judge "be issued a stamp pad … and a stamp, and you would whack it on the pad and stomp it on the paper, and it says, ‘Stupid but Constitutional.’ "

So he's indicated that he's inclined to express that kind of view (i.e. the "bad but nonethless constitutional" view that Thomas expressed in his own dissent) if he actually believes it.

Scalia was and is welcome (either in his dissent or at some point in the future) to put his proverbial "stupid but constitutional" stamp on that Texas anti-sodomy law.

[Jim Ryan]

As a result, criticism of a justice is reduced to insulting his moral sensibility. It's easier than analysis, but in the end you unfortunately get a rule of men.

[bad]

Appalled, I think you are looking at the word "animus," seeing something naughty and blaming that freudian glimpse on Scalia.

[Cecil Turner]

It's not what is said, but the very sarcastic tone that might suggests Scalia finds homsexulaity and homosexuals immoral.

"Very sarcastic tone"? He points up the logical disconnect in the majority opinion . . . rather well, I'd say. And the whole point of that passage is that some people do find homosexuality immoral. And guess what? They're allowed to.

I think calling what was written a sneer quite accurate.

We can agree to disagree.

So he's indicated that he's inclined to express that kind of view (i.e. the "bad but nonethless constitutional" view that Thomas expressed in his own dissent) if he actually believes it.

You'd have a lot better point if you found an example in a written opinion, and not in a university forum to illuminate a justice's philosophy. After the arrant stupidity over combatants' rights in the past decade, I am a big Thomas fan . . . but still view as dubious the propriety of expressing personal value judgments in a decision. In any event, Scalia's view on this subject comes through even more clearly in the link you provided:

Supreme Court Justice Antonin Scalia told a packed auditorium in Central Missouri that human rights, torture, gay rights and abortion are not mentioned in the Constitution and it is not a judge’s job to decide what those rights are. [emphasis added]

I couldn't agree more. Which also illuminates Barney Frank's real gripe: he knows he can't win in legislature(s), and fears he can't win in court. Throwing around ad hominems (whilst trying to find someone to rewrite the Constitution to his liking) is a great illuminator of how weak his position really is.

[Jane]

Cecil,

I'd give a lot if I could think on paper as well as you do.

[clarice]

Excellent as usual, Cecil.

No one on the left can understand why a judge wouldn't just decide cases per his preferences..the entire notice of judicial restraint is foreign to them. Therefore, if the judge doesn't decise according to THEIR preferences they argue he is opposed to them.

[clarice]

**notION of ***

[Jim Rhoads a/k/a vjnjagvet]

Clarice, that is why I always thought Frankfurter was more liberal than either Black or Douglas (or Brennan for that matter). How "liberal" is it when lawyers and clients are always trying to figure out what the latest trendy "five part test" will be and how it will be applied to a new set of facts. Throwing darts or guessing is not consistent with the rule of law, IMHO.

Frankfurter could normally be relied on to find state law experimentation constitutional as long as it was subject to the normal political processes and provided minimal due process. His rule was if a state legislature passes it and a governor signs it into law, challengers bear a heavy burden to persuade him it is unconstitutional. He had the same attitude towards federal legislation and administrative law if I remember correctly.

When he first took the bench, Frankfurter was considered a raving liberal. When he retired, he was considered a right wing zealot.

Interestingly, he never changed the analytical approach he articulated while a Harvard professor.

[clarice]

He sent a number of his prize pupils to Wisconsin which was (as it did more recently with welfare reform) passing all this new legislation, telling them it was the place to be. A number of my favorite law professors were his proteges.

[Jim Rhoads a/k/a vjnjagvet]

They weren't conservative were they, Clarice??? Back then, even the Republicans were "Progressive" weren't they?

IIRC, FF was also a strong proponent of judges staying out of "political questions" which he referred to as a "thicket" for judges.

[clarice]

Jim, I couldn't say--I mean one taught legislation, another civil procedure, a third legal process--not a big opening in any of those for political maneuvering.

I was considered sort of far left for suggesting that a lot of legal opinions were written from the standpoint of judges heavily influenced by their personal backgrounds and beliefs, that it was hard for them to avoid that.
(I still think that's the situation in many hard cases. I mean how many Scalias,Thomases and Roberts are there?)

[PD]

It's in that category of writing that can be called insensitive

Insensitivity is often in the eye of the weenie beholder. The beholder who should man up and face the fact that people are entitled to hold a different view.

(I love the analysis of how gay folk tend to be richer than average, and might try to influence the political system. If you substituted the word Jewish for gay, you'd have something that would probably be called anti-semitic.)

Or it might mean that people with money try to influence politics. An entirely unsurprising proposition. Just ask Soros.

[Jim Rhoads a/k/a vjnjagvet]

Well, at least they weren't overt like my crim pro prof Anthony G. ("Tony") Amsterdam, a FF clerk who was the author of the L Rev article which SCOTUS used as authority for the Civil Rights removal cases; he argued the case that won. Another was my Labor Law prof who gave me a bad grade because I had the temerity to remark in my exam in 1963 (pre-Gissel Packing) that the GC'S charges against the Employer for isolated 8a1 were kind of beside the point 'cause if it were found "guilty, all it would have to do was post a notice Since my job in the exam was to advise the Employer, I thought (and still think) that advice was correct.

But I wouldn't say I hold a grudge.

[clarice]

Heh!
It was the grandson of a liberal colleague of FF's who really was nasty to me--I had the best legal writing grade in my class and traditionally the best writers were hired to teach the freshmen legal writing. When I wasn't picked I assumed the others who were had better overall grades. I found out they didn't. When I asked the T.A. who ran the program under grandson's direction what was up, he said grandson didn't like my attitude. I said he'd never had me as a student and could hardly have an informed position on that, that there was not in place any means of challenging his conduct as discriminatory (there were then only 2 women in the class), but I would try to fashion some way to bring this to the attention of the faculty and seek redress if I were not hired the following semester.
I was hired.

[Jim Rhoads a/k/a vjnjagvet]

Thus winning your first case. WIthout threatening suit, I wager. But showing the talent which would blossom into a master negotiator.

You are one of the courageous ones, Clarice. IIRC, there were six women in Penn's class of 1965. Three in each section. It took a special kind of person to deal with the BS. Now more than half the students at tier one schools are women. And the bar is far better for it. Without women like you, though, it would never have happened.

But I'm not going to say that some of my best friends are women even if it's true;>0

[clarice]

Thanks.. We did have to walk a fine line.. Actually I never really did devlop negotiating skills..Most of my besst work was appellate and you can do that in a closet..

[Thomas Jackson]

I find it laughable that Frank who ran a gay prostitution ring out of his home should presume to hector anyone about what is good for society. Given his performance with Fannie Mae he has amply demonstrated that he will always be on the wrong end of the frank.

[syn]

Soon the language will reflect the idea that the union between a man and a woman is homophobic and marriage will be considered a hate crime.

[Foo Bar]

You'd have a lot better point if you found an example in a written opinion

Why do I have to find it in a written opinion? As I said in my first comment, Scalia was and is welcome (either in his dissent or at some point in the future) to put the "stupid but constitutional" stamp on that law.

When he explained, many years later, his vote to uphold the right to burn the flag, he felt free to note "I don't like people who burn the flag". He is quite free to say that (despite the Texas law's constitutionality) he didn't like the criminalization of consensual gay sex in private between two adults.