The Hill had this moment in its Briefing Room over the weekend, but I didn’t hear about it until HA reader Danno sent us an e-mail. Maybe Rep. Barney Frank (D-MA) doesn’t give a damn if people hear him call Supreme Court Justice Antonin Scalia a bigot, or maybe he thought no one outside of 365gay.com’s target audience would notice. The remark happens almost immediately:
Rep. Barney Frank (D-Mass.) called Supreme Court Justice Antonin Scalia a “homophobe” Friday for opposing gay rights.
“I do think that this argument that it’s unconstitutional for the federal government to pick and choose which marriages it will recognize is a good one,” Frank said Friday in an interview with a gay news website, 365gay.com.
“At some point it’s going to have to go to the United States Supreme Court,” he continued. “I wouldn’t want it to go to the United States Supreme Court now because that homophobe Antonin Scalia has too many votes on this court.”
The Supreme Court has no basis for intervening in what is a policy dispute. The Constitution does not have any language that requires the federal government to recognize gay marriage, or to force states to do the same. Regardless of Scalia’s personal biases or lack thereof, the matter belongs to the states and to the legislative branch. If Barney Frank wants to overturn DOMA, let him introduce a bill to do so, and it will have the same shot that DOMA did of passage.
Pointing this out does not make someone a homophobe. Would such a bill pass? Probably not, because a large number of Frank’s Democratic colleagues would oppose the bill on two grounds: jurisdiction and tradition. Frank wants to let his colleagues off the hook — notice that he doesn’t refer to them as “homophobes”, even though they have a lot more to do with the current policy than Scalia — by pressuring the Supreme Court to act as a legislative body on policy rather than rule on the Constitutional application of law.
It’s a cheap shot, and one I’d like to say was beneath the dignity of a member of Congress, except we’re talking about Barney Frank here.
He went on to conclude that “the Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable, the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.”
While sodomy does include many activities favored by heterosexuals, I think we all know what they’re talking about. Frank seems to be on steady ground here.
Well, no, he’s not. In his dissent on that decision, Scalia (like Clarence Thomas) allowed that the law might or might not be stupid, but it wasn’t unconstitutional. The Court in Bowers refused to find a fundamental constitutional right to homosexual sodomy, and also refused to do so in Lawrence, but overturned the law anyway largely on the basis of their distaste for the Texas law. Scalia wrote:
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. Ante, at 6 (“The liberty protected by the Constitution allows homosexual persons the right to make this choice”); ante, at 13 (“ ‘ These matters … are central to the liberty protected by the Fourteenth Amendment’ ”); ante, at 17 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:
And later he explains that the court overreached in Lawrence:
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
That’s the basis of democratic self-governance, rather than clerical rule, regardless of whether the clerics adhere to a religious faith or an autocratic class of ideologues.