Antonin Scalia on Civil Rights

Supreme Court Justice (nominated by Pres. Reagan 1986)


Showy profundities on gay marriage are profoundly incoherent

In dissent [in the Supreme Court ruling which legalizes gay marriage nationwide], Justice Antonin Scalia mocked the soaring language of Justice Kennedy, who has become the nation's most important judicial champion of gay rights: "The opinion is couched in a style that is as pretentious as its content is egotistic," Justice Scalia wrote of his colleague's work. "Of course the opinion's showy profundities are often profoundly incoherent."

Justice Anthony Kennedy wrote for the majority, "No longer may this liberty be denied. No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were."

Source: N.Y. Times on 2015 SCOTUS decision on Obergefell v. Hodges , Jun 27, 2015

Everyone in history, until 15 years ago, understood marriage

[Justice Kennedy wrote in legalizing gay marriage], "The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."

This drew a withering response from Justice Scalia, a proponent of reading the original understanding of Constitution. His dissent was joined by Justice Thomas. marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry."

Source: N.Y. Times on 2015 SCOTUS decision on Obergefell v. Hodges , Jun 27, 2015

Fear the judicial imposition of homosexual marriage

In 2003, the Supreme Court heard the case of two homosexual men who had been arrested and convicted under a Texas law that prohibited the act of sodomy. Reversing its decision from 17 years earlier (upholding a Georgia ban), the Court found a right to homosexual sodomy. Justice Scalia explained in dissent:

"One of the benefits of leaving regulation of this matter to the people.is that the people, unlike judges, need not carry things to their logical conclusions. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that we need not fear judicial imposition of homosexual marriage. Do not believe it."

Was Justice Scalia correct? Of course he was. Consider that less than eight months later, the Massachusetts Supreme Court struck down that state's ban on homosexual marriage.

Source: Fed Up!, by Gov. Rick Perry, p.109-110 , Nov 15, 2010

Coloradans entitled to be hostile toward homosexual conduct

Supreme Court nominee John Roberts donated his time to work behind the scenes for gay rights activists--and helped win a decision that's been hailed as the "single most important positive ruling" for the gay rights movement.

In 1995 Roberts agreed to help represent the gay rights activists as part of his law firm's pro bono work. The case before the Supreme Court, Romer vs. Evans, dealt with a voter-approved 1992 Colorado initiative that would have allowed employers and landlords to exclude gays from jobs and housing. A 6-3 ruling striking down the initiative was handed down in May 1996.

One gay activist called the Supreme Court ruling the "single most important positive ruling in the history of the gay rights movement." Antonin Scalia--who was joined in his dissent by Clarence Thomas and William H. Rehnquist--said: "Coloradans are entitled to be hostile toward homosexual conduct."

Source: NewsMax.com. "Roberts helped Gay Rights" , Aug 4, 2005

Opposed banning homosexual sodomy laws

In Nov. 2003, the State Supreme Judicial Court gave the Massachusetts legislature 6 months to enact a law granting homosexuals the right to marry. In July, the US Supreme Court had struck down the laws of 17 states and declared homosexual sodomy to be a constitutionally protected right. Following that decision, Justice Scalia fairly exploded:

"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity [are now] called into question. The court has largely signed on to the homosexual agenda. The court has taken sides in the culture war."

Indeed, it had. Nevertheless, on May 17, 2004, Gov. Romney bowed to the order of the court and began handling out the marriage licenses, though he and the state legislature believed that nothing in the constitution of the commonwealth mandated gay marriages. Few better examples exist of how unelected judges have usurped the law-making power, and how elected officials have abdicated.

Source: Where the Right Went Wrong, by Pat Buchanan, p.214 , Aug 12, 2004

Don't recognize GLBT as a constitutionally-protected class

In "Romer v Evans", the Supreme Court struck down, 6-3, the Colorado constituent's provision that homosexual, lesbian, or bisexual status should not entitle any person to claim quota preferences, protected status, or discrimination. Thus, a women with a room to rent could refuse to let it to a pair of homosexual men, or a church whose religion prohibited homosexual conduct could deny a practicing homosexual a position on its staff. The Supreme Court held, nevertheless, that the state's decision to withdraw this special protection, which it was not required to give in the first place, was motivated only by "animus" and so could not stand under the rationale of the equal protection clause.

The decision is an unsupported victory for homosexual activists. As Justice Scalia said in dissent, the Colorado constitutional provision was merely a "rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."

Source: Slouching Towards Gomorrah, by Robert Bork, p.112-114 , Dec 16, 2003

Opposing homosexuality not as reprehensible as racial bias

In "Romer v Evans", the Supreme Court ruled that Colorado could not withdraw special protection for homosexuals. Justice Scalia said in dissent, the Colorado constitutional provision was merely a "rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority. [The Court's decision] places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias." He concluded with the just observation that the Colorado provision "was an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. [It] is designed to prevent piecemeal deterioration of th sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will."
Source: Slouching Towards Gomorrah, by Robert Bork, p.113-114 , Dec 16, 2003

Flag-burning is anathema, but protected as free speech

Justice Scalia [made a] statement to law students in Illinois. "I never slept better than the night I voted in the flag-burning case," he told the students in the Land of Lincoln. Justice Scalia was telling the students he knew deep down that he had voted honestly. He had faithfully interpreted the Constitution as he conscientiously saw it, as opposed to reading his personal or political views of what was right and just into the Constitution. Flag-burning was anathema to Justice Scalia the person. But his oath was to the law, including the higher law of the Constitution. In Justice Scalia's view, the First Amendment's free-speech provision protects unpopular expressions of opinion. Communications of popular views obviously require little if any protection from the law. It was the unpopular voice, the radical expression of viewpoint, that needed protection against the will of society.
Source: First Among Equals, by Kenneth Starr, p. 53 , Oct 10, 2002

Limit employer liability for sexual harassment by employees

The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor’s conduct. As a result, employer liability is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. The standard of employer liability should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor’s conduct to occur.

I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault.

Source: 1998 SCOTUS case Burlington v. Ellerth, 97-569, dissent , Jun 26, 1998

Employee must prove negligence to sue city for harassment

For the reasons given in my dissenting opinion in Burlington Industries v. Ellerth, ante, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the City is not vicariously liable for the conduct of [the petitioner’s supervisors]. Because the Court reverses this judgment, I dissent.
    As for petitioner’s negligence claim, I disagree with the Court’s conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. The City should be allowed to show either that:
  1. there was a reasonably available avenue through which petitioner could have complained to a City official
  2. or that it would not have learned of the harassment even if the policy had been distributed.
  3. Petitioner would bear the burden of proving the City’s negligence.
Source: 1998 SCOTUS dissent Faragher v. Boca Raton, 97-282 , Jun 26, 1998

Legal sodomy leads to legal incest, adultery, & bestiality.

Justice Scalia wrote the dissent on Lawrence v. Texas on Jun 26, 2003:

In a landmark 6-3 ruling, the Court struck down a sodomy law in Texas and, by proxy, invalidated sodomy laws in the 13 other states where they remained in existence, thereby making same-sex sexual activity legal in every state. The court had previously addressed the same issue in 1986 in Bowers v. Hardwick, where it upheld a challenged Georgia statute, not finding a constitutional protection of sexual privacy.

HELD: Delivered by Kennedy, joined by Stevens, Souter, Ginsburg, Breyer; O'Connor concurring

In reversing a Texas court ruling, the Court overruled its previous decision in Bowers v. Hardwick, holding that a Texas statute prohibiting certain sexual acts--namely those between same-sex partners--violates the Due Process Clause of the Fourteenth Amendment. The Supreme Court voted 6–3 to strike down the Texas law, and Sandra Day O'Connor found that it violated equal protection guarantees.

DISSENT #1: By Scalia, joined by Rehnquist, Thomas

Scalia objected to the Court's decision to revisit Bowers, pointing out that there were many subsequent decisions from lower courts based on Bowers that, with its overturning, might now be open to doubt. Scalia also criticized the writers of the opinion for their unwillingness to give the same respect to the decision of stare decisis that some of them applied in Casey. Scalia also averred that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers's validation of laws based on moral choices.

DISSENT #2: By Thomas

The law which the Court struck down was "uncommonly silly", but he voted to uphold it as he could find "no general right of privacy" or relevant liberty in the Constitution. He added that if he were a member of the Texas Legislature he would vote to repeal the law.
Source: Supreme Court case 03-LAWR-TX argued on Mar 26, 2003

1st Amendment protects church's anti-gay funeral pickets.

Justice Scalia joined the Court's decision on SNYDER v. PHELPS on Mar 2, 2011:

Marine Matthew Snyder was killed in the line of duty in Iraq. On public property about 1000 feet from his funeral service, the Westboro Baptist Church followed its custom of protesting at the funerals of service members with signs condemning both homosexuality and the US for supporting it. Snyder's father has been stricken by a grievous emotional reaction since. He sued the protestors and the church for intentional infliction of emotional distress (IIED).


The Free Speech Clause of the First Amendment can be a defense, including those for IIED, if speech regards a public, rather than private, concern. The protestor's signs here concerned plainly public matters such as the moral conduct of the US and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy. The protestors can't be said to have used speech on public issues to cloak an attack on the plaintiff. The protestors chose the location to increase publicity, but this does not mean the speech is less protected.


The State is not always powerless to provide protection, but upholding IIED liability on the protestors here would not serve the State's interest in protecting citizens against severe emotional harm. In this case, the protestors complied with police directions, picketed where it was lawful to do so, and could not be seen from the funeral.


The protestors engaged in a personal attack on Snyder's memory through signs implying he was a homosexual, a Catholic, and doomed to hell for these “sins.” The direct nature of this assault on the dead marine and his family were made clear in a subsequent Internet posting directed at Snyder's character and his parents. The First Amendment does not shield these verbal assaults at such an emotionally vulnerable moment.
Source: Supreme Court case 11-SNYDER argued on Oct 6, 2010

Sociological analysis insufficient to prove gender bias.

Justice Scalia wrote the Court's decision on WAL-MART v. DUKES on Jun 20, 2011:

The plaintiffs were certified as a class by the district court in their suit against Wal-Mart, on behalf of 1.5 million female employees, seeking punitive damages and backpay owing to Wal-Mart's alleged discrimination against them in violation of Title VII of the Civil Rights Act.


The certification of the class was inappropriate. Class certification requires proof that a class of persons have suffered the same injury by a general policy of discrimination. Wal-Mart's corporate policy forbids discrimination, and the plaintiff's only evidence of a general policy of discrimination is a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias. Since the expert testified he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was not significant proof. That Wal-Mart gave local supervisors discretion over employment matters did not show that a central direction to use that discretion in a discriminatory manner. The claims for backpay were improperly added onto a class provision that allows only equitable relief, not monetary relief.

DISSENTED: GINSBURG concurs in part, dissents in part; joined by BREYER, SOTOMAYOR & KAGAN

I agree this class should not have been certified, but such a class might have proper under Rule 23(b)(3) seeking money damages. The Court should not have ruled on the class at this time, but rather remanded the issue for consideration and decision. The district court found evidence that 70% of hourly employees are female, but only 33% of managers. That, with other evidence, could support a common question, necessary for the resolution of all class members' cases, that corporate culture and lack of formal standards or training for employment decisions may have led to discrimination.
Source: Supreme Court case 11-WALMART argued on Mar 29, 2011

State laws should not protect gay rights.

Justice Scalia wrote the dissent on Romer v. Evans on May 20, 1996:

An amendment to the Colorado state constitution that would have prevented taking any action to recognize gay and lesbian citizens as a protected class was passed by voters in a referendum. Romer v. Evans is a landmark Supreme Court case; the first dealing with gay rights since Bowers v. Hardwick (1986), when the Court had ruled that a law criminalizing homosexual sex was constitutional.

HELD: By Kennedy, joined by Stevens, O'Connor, Souter, Ginsburg, Breyer

The court ruled 6-3 that Colorado's Amendment was unconstitutional. Rejecting the state's argument that the Amendment merely blocked gay people from receiving "special rights", Kennedy wrote, "To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint." Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups that they protected, this merely served to put others on notice.

DISSENT: By Scalia, joined by Rehnquist, Thomas

The dissent states that the Colorado amendment is "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective is unimpeachable under any constitutional doctrine." Scalia argued that the Amendment did not deny homosexuals access to the political process but merely made it more difficult to enact laws that they favored. Scalia concluded, "Today's opinion has no foundation in American constitutional law, and barely pretends to. [The Colorado amendment] does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment."
Source: Supreme Court case 96-ROMER argued on Oct 10, 1995

Hate crimes must be separate crimes, not just for sentencing.

Justice Scalia joined the concurrence on APPRENDI v. NEW JERSEY on Jun 26, 2000:

Apprendi fired several shots into the home of an African-American family and made a statement that he did not want the family in his neighborhood because of their race. He was charged with possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence [for racial intimidation]. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count.


(Stevens, joined by Souter, Ginsburg, Scalia & Thomas)
The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.


(Thomas & Scalia)
My view is that the Constitution requires a broader rule than the Court adopts. If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—then the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny.


(O’Connor, joined by Rehnquist & Breyer)
Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” The Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of legislatures.
Source: Supreme Court case 99-478 argued on Mar 28, 2000

Miranda rights can be overruled by Congress.

Justice Scalia wrote the dissent on DICKERSON v. UNITED STATES on Jun 26, 2000:

Mr. Dickerson, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the FBI, on the ground he had not received “Miranda warnings” before being interrogated. The Government appealed [on the grounds that] his statement was voluntary [as allowed by a Congressional law]. That court concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question.


(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
In Miranda v. Arizona (1966), we held that certain warnings must be given before a suspect’s statement could be admitted in evidence. Congress then enacted a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.


(Scalia, joined by Thomas)
Today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda. Marbury v. Madison (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that [the law in this case] violates the Constitution. [Instead, the Court is adopting] a significant new principle of constitutional law, in which statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” I dissent.
Source: Supreme Court case 99-5525 argued on Apr 19, 2000

Boy Scouts may exclude gay scoutmasters.

Justice Scalia joined the Court's decision on BOY SCOUTS OF AMERICA v. DALE on Jun 28, 2000:

The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.


(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is not absolute; it can be overridden by regulations adopted to serve compelling state interests.


(Stevens, joined by Souter, Ginsburg, & Breyer)
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.”

The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey’s law, therefore, abridges no constitutional right of the Boy Scouts.

Source: Supreme Court case 99-699 argued on Apr 26, 2000

Other Justices on Civil Rights: Antonin Scalia on other issues:
Samuel Alito(since 2006)
Stephen Breyer(since 1994)
Ruth Bader Ginsburg(since 1993)
Elena Kagan(since 2010)
Anthony Kennedy(since 1988)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Sep 21, 2020