[Vision2020] Justice Scalia, Originalism, and Homosexuality

[Nicholas Gier]

 Justice Scalia, "Originalism" and Homosexuality
Posted: 04/17/2013 9:58 pm Huff Post
by Geoffrey R. Stone, Professor of Law, University of Chicago

 In a speech at the University of California this week, Justice Antonin
Scalia, an advocate of the doctrine of "originalism," was asked by a
student how an orginialist should apply the First Amendment's guarantee of
"freedom of speech" to modern forms of communication. After all,
television, radio, movies, email and the Internet did not exist at the time
the First Amendment was adopted. Does this mean, the student asked, that
the use of such technology does not constitute "speech" within the meaning
of the First Amendment?

According to the *Wall Street Journal*, Justice Scalia responded by
explaining that "technological change rarely presented serious obstacles"
to his method of interpretation, "because the principles underlying speech
and press freedoms . . . can readily be extrapolated to new media."

Another student then asked whether under Justice Scalia's approach to
constitutional interpretation the Constitution should "similarly be
interpreted to recognize new social phenomena, such as gay relationships,"
a reference to cases currently pending in the Supreme Court on the issue of
same-sex marriage.

According to the *Wall Street Journal*, Justice Scalia responded: "I don't
consider homosexuality a new phenomenon." He explained that homosexuality
was known when the Fourteenth Amendment, which guarantees the "equal
protection of the laws," was adopted in 1868, and "was considered a crime
in most places."

One has to wonder whether Justice Scalia knows *anything* about the history
of which he speaks. In fact, "homosexuality" was not a crime at the time
the Fourteenth Amendment was adopted. What was unlawful was "sodomy," which
was generally defined to include oral or anal sex, without regard to
whether the couple who engaged in the act were of the same sex or the
opposite sex. There were no laws against homosexuality. At time the
Fourteenth Amendment was enacted people considered sodomy in the same way
they considered robbery, burglary or murder. It was a bad thing, and if
people chose to do it they should be punished.

Moreover, at that time there was no concept of the "homosexual" as a type
of person with a particular sexual orientation. The concept of the
homosexual as we now understand the concept did not come into being until
long after the Fourteenth Amendment was adopted, at the end of the
nineteenth century. Indeed, despite what Justice Scalia seems to think, the
word "homosexuality" did not even exist until the late nineteenth century.

It was only then that physicians and psychologists began for the first time
to recognize that some people, termed "homosexuals," had a deeply-rooted
sexual orientation that led them to be attracted to persons of the same
sex. This led to all sorts of complex questions: Was a person's homosexual
orientation congenital or acquired? Was it "curable" or incurable? Should
it be accepted as an unavoidable condition or should it be actively
resisted and suppressed? Many physicians, like Freud, concluded that
whatever the cause of a person's homosexual orientation no moral or social
opprobrium should attach to it.

Since the 1970s, the consensus among physicians and other mental health
professionals is that homosexuality is a normal variation of human sexual
orientation. The prevailing view today is that same-sex sexual and romantic
attractions, feelings, and behaviors are normal and positive variations of
human sexuality, a position that has been officially endorsed by both the
American Psychiatric Association and the American Psychological Association.

None of this, of course, was known in 1868. Just as those who enacted the
First Amendment could not have anticipated cell phones and email, those who
enacted the Fourteenth Amendment could not have anticipated our current
medical, scientific and social understanding of sexual orientation.

The same reasoning and the same conception of "orignalism" that leads
Justice Scalia rightly to conclude that the Framers' ignorance of cell
phones and the Internet does not resolve questions about the meaning of
"the freedom of speech"should also lead him to the conclusion that the
Framers' ignorance about the nature of sexual orientation does not resolve
fundamental questions about the meaning of "the equal protection of the
laws."

If one is going to be an "originalist," at least one should be consistent
about it.
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