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Justice Scalia Supports the Gays!


by Brian Leubitz

Ok, now that I shocked you into reading this post, let me clarify. Justice Scalia, in oral argument yesterday, grilled attorneys for Protect Marriage Washington who were trying to hide the names of people who had signed the petition to put Washington’s domestic partnership up on the ballot.

For the second time this month, the U.S. Supreme Court’s most conservative member, Justice Antonin Scalia, on Wednesday, April 28 took a surprising position — one that is helpful to gay civil rights.

“The First Amendment,” said Scalia during oral arguments in a case involving the 2008 Washington State referendum on a domestic partnership law, “does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.” The point was essentially the same as that made by five national gay legal and political groups in their friend-of-the-court brief in the case, Doe v. Reed. (Bay Windows)

First, let me just say this before the world gets too topsy-turvy. Justice Scalia is rather dogmatic. It is just that his dogma happens to coincide with what LGBT issues at this point.

Here’s the background on this case. A group of ant-gay opponents of domestic partnership in Washington placed a measure on the ballot, Ref71. 71 would have eliminated Washington’s domestic parternship program. Apparently, for some, it isn’t really about marriage, it’s about never letting gays and lesbians have any rights with respect to the ones they love whatsoever. The issue in this case is whether the Washington law that allows the names of those who signed the petition to be made available is Constitutional.

Justice Scalia pretty much sums up my thoughts on the issue. You have a right to free speech, but not the right to be free of others criticism based upon the speech. That’s really no way to run a democracy. Democracy requires that, in the political arena, we speak freely, yet speak with without a veil of secrecy. The anti-marriage crowd wants to pelt stones at our community from behind a duck blind.

Perhaps they should just put sheets on, throw on a white hood, and be done with it. That always worked for the racists back in the day.


  • 1. Kathleen  |  April 29, 2010 at 9:11 am

    To read the full transcript of the oral arguments, see here:

    Look for: 09-559. Doe v. Reed argued 04/28/10

  • 2. Ronnie  |  April 29, 2010 at 10:02 am

    I read about this on….and I find Scalia's comments to the protect marriage lawyers quite amusing…really good for a laugh….lol….<3…Ronnie Mc

  • 3. Ronnie  |  April 29, 2010 at 10:03 am

    forgot to subscribe…herumph….<3…Ronnie

  • 4. Straight Ally #3008  |  April 29, 2010 at 10:04 am

    Please forgive me for being OT, guys but…a few minutes ago I was talking to Lt. Dan Choi. Really inspiring to see him in person! You may all be jealous of me now. 😀

  • 5. Ronnie  |  April 29, 2010 at 10:10 am

    totally Jealous ……. ; ) ….<3…Ronnie

  • 6. Joel  |  April 29, 2010 at 10:21 am

    Not jealous, but certainly envious! Is this man going to be our MLK? what did you talk about?

  • 7. Straight Ally #3008  |  April 29, 2010 at 11:57 am

    I asked him which issue he thought would be decided favorably first: DADT, ENDA, or marriage equality. He said that while he couldn't predict it, he thought too much infighting and wasted time has resulted from deciding which issue to deal with first; that is, just move forward on all fronts. I closed by saying it was nice to be on the same side of history as him. 🙂

  • 8. Brian  |  April 29, 2010 at 10:32 am

    Scalia's position really isn't that surprising. He is not someone who believes generally in a Constitutional right to privacy. The arguments here don't involve gay civil rights — they involve whether people who sign petitions have a right to privacy with regard to their involvement. So saying "no" is perfectly consistent with Scalia's track record.

  • 9. Bolt  |  April 30, 2010 at 4:37 am


  • 10. Carvel  |  April 29, 2010 at 10:43 am

    Don't be fooled about Scalia as he has already come out opposed to same-sex marriage and in his dissenting opinion in Lawrence he predicted that the dicision of the court would pave the way to the proponents of same-sex marriage which he opposed.

    Scalia is not a contradiction in terms, he is a very strict constitutionalist in his views and opinions. He is not friends of ours and does us no favors. He is merely consistent in his views that he is also willing to take the heat for his beliefs. He is a very devout Roman Catholic and he basically is the old line hard school Catholic. He lives, eats and breathes his religion and his philosophy. He is not two faced and he is not a deceitful person. I just don't agree with where he draws the line. He is an honorable person and he will respect your right to disagree with him, but when he casts his vote, he will be strongly and decidedly against us unless the heavens part before the case comes before him.

    The best thing that could happen for us is for the Federal District court, Judge Walker, to decide in our favor and the Court of Appeals to affirm and the Supreme Court to decline to hear the case. However, that will not happen. there are enough dissenting opinions that the case will be heard by the Supremes.

  • 11. tim  |  April 29, 2010 at 11:16 am

    He is not a "strict constitutionalist" – when a case conflicts between his personal beliefs and the constitution – his personal beliefs usually wins. Thomas is a better example of a strict constitutionalist and the most libertarian member on the court. Thomas has also swung Scalia to his position many times. I respect them both and I love reading Scalia's opinions especially his dissents.

  • 12. Lily  |  April 30, 2010 at 1:10 am

    Personally, I can't stand reading his opinions. They tend to make stretches that would make a yoga master tear some muscles.

  • 13. Richard A. Walter (s  |  April 29, 2010 at 11:25 am

    Exactly! After all, nobody stopped Natalie Mains from saying her peace about GWB, but they certainly gave the Dixie Chicks a lot of grief afterward. And I am reading a book titled Supreme Conflict, writtenn by a wman with an inside look at the SCOTUS, that shows Scalia usually votes the way Thomas does, rather than the other way around. She gives glimpses into the stuff we don't normally see, such as how their conferences when they gether to make their votes are presented, and the fact that the justice with the least seniority is he last one to make his or her arguments to the other justices, and that meant that Thomas was for a time speaking last. Often Scalia would change his vote after Thomas spoke.

  • 14. Ronnie  |  April 29, 2010 at 11:39 am

    OMG!!!!!….There are not enough words…..<3…Ronnie

    Posted on April 29, 2010
    Don't Ask, Don't Telephone?
    By Editors

    Of all the things you’re not supposed to do in the military — apparently dancing with another man to Lady Gaga and Beyoncé is not one of them.

    Check out this tribute video made by two guys who are stationed in Afghanistan.

  • 15. Bolt  |  April 30, 2010 at 4:36 am

    This could be an excellent recruitment ad for the military.

  • 16. Papa Foma  |  April 29, 2010 at 11:41 am

    I'm encouraged by Scalia's constitutional stand — I thought that when/if the prop8 issue reaches the SC, the First Amendment constitutionality might prevail over even a majority public opinion (example mixed marriage).

  • 17. Papa Foma  |  April 29, 2010 at 11:43 am

    Oh — wrong amendment — PF

  • 18. Marlene  |  April 29, 2010 at 12:57 pm

    With Scalia's scathing riposte through the flimsy arguments of the Washington bigots, here's hoping that Doe vs. Reed will end up a 7-2 or maybe even a 9-0 decision in favour of open records.

    Here in Bowling Green, OH when the 1,500+ signatures were made public, as far as I know, there's been no retaliation, no "hysterical homosexuals", no hate crimes leveled against those who signed the petitions, and that's how it should stay.

    The Washington bigot just wanted the special right to keep the names of their supporters secret from the harsh light of public access and the ability to give thousands of dollars to fund their campaign of lies, hate, and bigotry.

  • 19. Mary Ellen  |  April 29, 2010 at 1:10 pm

    Lest we forget….here is a birthday video message from a sweet soul! <a href="″ target=”_blank”> <a h…” target=”_blank”>

  • 20. Ronnie  |  April 29, 2010 at 1:29 pm

    "I hope and pray that you understand that every time you preach, every time you teach, every time you protest a young person out there is listening. And a young person deciding whether or not they can make it one more day is hearing about what you have to say about who they are. And I hope through all the politics, through all the passions that you remember real people are listing." – Michael Huerta

    (me) well said….<3…Ronnie

  • 21. Dick Mills  |  April 29, 2010 at 1:44 pm

    The one good thing that came out of Citizen's United, is that none of the justices joined with Thomas in his assessment that corporate entities should be allowed to skirt disclosure laws. And, while it might be a slightly different issue, I read that as a good indication that they would side with state requirements for other disclosure requirements as well.

    And, if Maggie Gallagher thinks that she can depend on this court (which probably is made up of many sympathetic individuals) to side with NOM in their attempts to skirt Maine's donor disclosure laws, then she (and the Washington anti-gay group) may be be sadly mistaken.

  • 22. truthspew  |  April 29, 2010 at 3:42 pm

    Scalia is one who always gives me WTF moments, except of course when he makes our case for us.

  • 23. adam  |  April 29, 2010 at 5:39 pm

    In this liberal lawyer's opinion, he's probably one of the top three most intelligent conservatives out there. He still can't always get from his wrong premises to a correct conclusion (show me an honest strict constructionist defense of Brown v. Board of Education and I'll show you an orientable Möbius strip), but he's a great lawyer and writer.

  • 24. Franz  |  April 29, 2010 at 4:25 pm

    I hope you in the states and we in germany will reach the level in spain. The law in spain just says: The marrige is possible between oposit sex and same sex couples. Their is no difference in the rights they have got. And thats law in spain – a very religious country!

  • 25. fern  |  April 30, 2010 at 12:15 am

    Dear Franz, Bavaria is probably more religious than Spain, It seems to me that the Bavarian people are religious on their own volition, Spain has a history of Anarchists, revolutionaries and republicans, Franco's body wasn't cold that changes were initialized, criminals like Picasso, Frederico Garcia Lorca became heroes.

    Auf wieder schnapsen…

  • 26. Tim  |  April 29, 2010 at 8:20 pm

    Ok, My opinion is everything revolves around money, EVERYTHIING! And even though support for Gay marriage is gaining ground, the idea of it is still unpopular with the majority of Americans! So if ellected officials want to keep their jobs they will do what they need to do keep them, even if that means voting against gay marriage when they may not really give a shit! But they need financial support, so who is really paying the price? Us!!

  • 27. Carvel  |  April 30, 2010 at 12:11 am

    The money trail is not as direct as you think. The federal judiciary are appointed for life to keep money, politics, and influence out of the picture as much as possible. The politicians want money to run for political office where to some that is access to the big checkbook. They can not steal the money directly, but by spending money of defense contracts, and other causes the people who get the government's money can give them some of it. this is why we need completely publically funded political campaigns.

    In politics money equals votes and votes equals money. The two are interchangeable to a great degree. That is why they talk about the gay vote, the black bote and the women's vote, etc.You are however right. Just about everything revolves around money, political votes, and power which are almost all interchangable.

    Obama needed us to hep get elected, but now he does not need us.

  • 28. fern  |  April 30, 2010 at 12:51 am

    Of course Obama needs you and will need you. At first I was upset and called him Oblahblah, however he is showing some guts now and unless you wanna get into guerrilla warfare, your best bet is still to support him.
    My advice is fight them on all fronts at any times and at any costs. Churchill said about the Germans invading England that he would break his last bottle of wine on their heads and believe me he knew what good wine is.

  • 29. Frozt  |  April 29, 2010 at 11:17 pm

    I think the best argument that petition names should be secret is that petitions are similar to elections, and that we have always voted in secret so that citizens can exercise their political rights free from intimidation. I personally agree that petition names should be made public (or else it would be very difficult to to prevent fraud by confirming which names are real and which are phony), but the argument above is a fair one.

  • 30. Marlene  |  April 29, 2010 at 11:45 pm

    Frozt — Actually, *who* you vote for is kept secret. The fact you're a *voter* is not.

    You registering for whatever party you support in the primary, puts you on that list, which is then public record. Your county Board of Elections then makes it available to any political and issues entity willing to pay for either printing labels, or copying the lists on CDs.

  • 31. Papa Foma  |  April 30, 2010 at 2:17 am

    To Marlene,
    Your analogy is a tiny bit off…signing the petition does allow one to see your opinion unlike registering to vote where your 'opinion' (candidate) is not required to be divulged.
    Having to be accountable for your opinion on a public issue is not the same as being able to vote unhampered on a candidate. Manipulating votes to put a person of power in place is dangerous to society but an opinion on a singular issue does not pose anything similar in the way of a social threat….that is to say, voter secrecy is a measure to prevent political corruption and not a free speech right (as you can declare your political preference anyway) but acknowledging ones opinion is already a declaration of ones opinion (therefore use of freedom to speak) and not eligible necessarily for protection.

    Just my 2 cents!

  • 32. Papa Foma  |  April 30, 2010 at 2:20 am

    I am sorry, I mean To Frozt…my apologies.

  • 33. Kevin_BGFH  |  April 30, 2010 at 2:27 am

    Right, I agree with Marlene. The petition process is more similar to the legislative process than the election process. Voter registration is public, and keeping track of who showed up to vote is public, because that's an important part of protecting against election fraud. Similarly, ballot signatories and campaign contributions also need to remain public in order to provide public scrutiny against fraud. In Massachusetts, many people discovered that they were either tricked by petitioners to sign the wrong petition (to repeal same sex marriage), or discovered that someone else had added their name. Without public disclosure, that sort of fraud would never have been unveiled.

  • 34. Richard A. Walter (s  |  April 30, 2010 at 2:05 am

    Alo, Frozt, pettitions here are only similar to elections in that they can influence public policy. As such, any and all documentation of petitions is public record, much in the same way that the congressional roll call votes are on bills that are in the process of becoming law. This means that people can use these petitions in their election campaigns in an attempt to sway voters in their favor, or in the case of petitions that their opponents have favored, to sway voters away from the competition. Therefore, when you sign a petition, you should be prepared to face the consequences of your actions. This has long been a principal of our form of government.

  • 35. fern  |  April 30, 2010 at 1:23 am

    To Marlene:

    In the U.S. if you wanna vote do you have to register with a party before' being able to vote?

    In Belgium one has to vote or pay a fine since there is no trust in politicians, so you'll have people who'll vote extreme left or extreme right hoping neither wins, this should explain the cacaphonie in Belgian politics but, but, but… WE HAVE SAME SEX MARRIAGE since 2003 and the president of the socialist party, former prime minister is an out of the closet gay.
    My honest opinion is that if they're stupid enough to want to get married they shouldn't be denied (simplified opinion).

  • 36. Richard A. Walter (s  |  April 30, 2010 at 2:02 am

    fern, you do not necerily have to join a particular party and go to all the conventions, etc. when you register to vote, but they do ask which party you vote with primarily when you register to vote. This is because in most states here, during the primaries you vote for one party or the other, and cannot cross party lines untl the general elections in November. To me, this seems stupid, but that is how it goes. As for being stupid enough to want to marry, it also boils down to wanting full recognition in the legal stratosphere for our committed lifelong relationships with our spouses. I for one am proud of my husband, and wear his ring, even though hee in North Carolina, we are not given any type of legal recognition of our marriage. And then in June, we will only have recognition in Connecticut and a few other states, and the District of Columbia. But at least we will have that legal recognition, and the legal certificate so that we will still be counted once we can get North Carolina to wake up and grant full equality to all North Carolina citizens and residents.

  • 37. Dave T  |  April 30, 2010 at 2:22 am

    Fern, here's how it works (at least here in California, where I currently live):

    You have the option, when registering to vote, of specifying a party affiliation. You can then vote in the primary for your party to pick the candidate for that party in the general election. Note, however, that the rules for this vary amongst jurisdictions and parties – some jurisdictions and parties hold open primaries, where anyone can vote for whichever party they choose. You also have the option of declining to state a party affiliation – that's what I do. In addition, the voter lists provided to canvassers for all political parties include your stated affiliation, saving them having to do the work to actually figure out who is likely to vote for them.

    The primary system has always seemed like the wrong way to do it. I much prefer the system I grew up with in Canada. If you want to be a member of a political party, you go out, pay your membership fee, and join. That's how you get a voice in choosing a particular party's candidate. The party is responsible for picking their own candidates in their own way – if they make a stupid choice, they have no one to blame but themselves.

    My personal opinion is this: political parties are largely private organizations (like clubs) which have a public function (choosing potential legislators). As a taxpayer, I don't think I should be paying for holding an election for any organization, whether I agree with them or not. If they want to choose their candidates by holding elections amongst their members, great. They could do it behind closed doors or via competitive hot dog eating for all I care. Once they've chosen their candidates, the electorate gets to see whether they've made a good choice or not, and will decide by electing that person or not. An added bonus of this system is that there are no annoying primary election ads – I can't tell you how sick I am of hearing Meg Whitman and Steve Poizner lie about each other and about California.

  • 38. Marlene  |  April 30, 2010 at 2:59 am

    Dave — That's the way it was done in the old Daley Machine back in 1960s Chicago and it's precusor Tammany Hall — with back room deals, bribes, and whatnot.

    I much prefer the primary system where anyone who felt like they can be a better public servant steps up, gets their petitions signed, pays the appropriate fining fees, and haves at it.

    I may be a unrepentant liberal, but I'd rather go with the free market when it comes to politics, rather than go back to the smoke-filled rooms of the bygone days.

    As to the part about having to pay to join a particular party, I can't due that due to the fact every dollar I can get goes to paying my monthly bills, and it's a luxury if I can get a hambug and fried at McDonald's, let alone afford the $35 it costs me to join my county Democratic Party.

    To further clarify on Richard's comments; here in Ohio someoone who doesn't want to declare for a particular party can ask for an issues-only ballot, which has only the local, county, township, and state issues like school and city taxes, etc.

    Here in Ohio, you can switch parties at the primary, but you must sign a statement signifying that you're changing parties and that your switch can be challenged. We had alot of that in my precinct (heavily GOP) by voters who I believed did the "GOP vote for Hillary" to ensure McCain got elected in November.

  • 39. David Kimble  |  April 30, 2010 at 2:43 am

    [youtube =]
    Abit off-topic, but I thought we needed a video this morning! Enjoy – The Weather Girls really got it right on this one! (chuckles) <3 David

  • 40. Ronnie  |  April 30, 2010 at 3:05 am

    Woooooooo….."for the first time in history…its gonna start raining men"….hehehehe

    I was a back up dancer for Martha Wash a few years ago when I worked at the clubs in NYC……<3…Ronnie Mc

  • 41. Dick Mills  |  April 30, 2010 at 3:03 am

    In my opinion, petitions are much more similar to seeking redress through the court system, than to "voting" or an "election". The only difference being that the court, in the case of a petition, is the public. And, in order to seek redress through a petition, one must show (proof of) a significant body of petitioners. As such, those seeking redress should (as in virtually every legal suit) have no right to anonymity. The petitioners are asking the public to vote on an issue that is important to them, and we (the public) have every right to know who the petitioners are.

  • 42. BobN  |  April 30, 2010 at 3:45 am

    Call me paranoid, but this sure feels like Kabuki theatre. The argument that Scalia makes is so utterly obvious that Alito's and Roberts' apparent confusion about the issue is really hard to believe. Their questions are unserious, silly even. Is this meant to be a chance for Scalia to repair his image vis-a-vis gay issues so that his future vote against same-sex marriage and civil unions etc. will appear less bigoted?

  • 43. Andrea  |  April 30, 2010 at 3:59 am

    In the context of the recent Citizens United dissent authored by Justice Thomas, and Scalia's mention in oral argument that some people don't trust the government officials, I figure that Scalia is concerned that if signatures are kept secret, there's no verifiable check against forgery.

  • 44. Bolt  |  April 30, 2010 at 4:32 am

    I wonder if Scalia believes we trusted his impartiality, after a duck hunt with Cheney in 2002, immediately before oral arguments in a case that involved him?

  • 45. Frozt  |  April 30, 2010 at 9:29 am

    In Scalia's defense, do you really think that he would have voted differently, but for his duck hunting trip with Cheney? I still think it was dumb to go hunting because it created the appearance of impropriety, but realistically he was going to vote conservatively regardless.

  • 46. IT  |  April 30, 2010 at 4:14 am

    I'd like to know what the evidence is that there actually WAS harrasment in CA. Names of donors to both sides were public. I have heard lots of claims, but not clear how much is real.

    Before the election I was yelled at spit at and my car was vandalized. BUt I guess I'm just a GLBT person so I don't count?

  • 47. Bolt  |  April 30, 2010 at 4:29 am

    Maybe Scalia is playing volley ball, and he has set the gay marriage ball for a religious zealot strike. While he has maintained a level playing field for us to operate on, he may send us back to the voting booth where he expects us to earn approval of our right to get married. I'm not a legal expert, but I don't consider him to have our common interests in his heart.

    In any event, if I could predict a loss for us in the Perry v. Schwarzenegger federal challenge, I would continue to scream full steam ahead. We've got truth, proof, and what's right on our side, and the religious zealots deserve to have their noses rubbed in their sky high pile of shit they've created for us!

  • 48. Kathleen  |  April 30, 2010 at 5:31 am


    Both Plaintiffs and Proponents have responded to the discovery by the No-on-8 groups. Both agree that ACLU/EQCA are in compliance with the discovery orders.

    Plaintiffs (Doc 651):
    …Plaintiffs inform this Court that they believe that the No on 8 groups’ production is in compliance with this Court’s March 5 and March 22 Orders

    Proponents (Doc 652):
    Counsel for [EQCA and ACLU] have represented that they have produced all documents responsive to this Court’s orders … and we believe them. Accordingly, Proponents have no basis to conclude that EQCA and ACLU have failed to comply with this Court’s production orders.

    I'll be uploading the docs to Scribd in a few minutes; they will be available here:

  • 49. Kathleen  |  April 30, 2010 at 7:36 am

    Walker filed an ORDER, discharging the order to show cause and canceling the May 3 hearing.

  • 50. Kathleen  |  April 30, 2010 at 7:46 am

    Well, this makes it crystal clear no intention to take action on DADT this year.

  • 51. Kathleen  |  April 30, 2010 at 8:49 am

    Very weird… twice now I've tried to post a comment here, with a link to Pam's House Blend (where you can see Gates' letter to Obama) and it isn't showing up. It doesn't give me any kind of error message; the comment just isn't appearing. Anyone else have this happen before?

  • 52. Andrea  |  April 30, 2010 at 9:12 am

    Yes, I've had it happen a few times. Even in posts that contained no links or profanity of any kind. (Is it a bug or a feature?)

  • 53. Andrea  |  April 30, 2010 at 9:09 am

    WTF? The military doesn't tell Congress what to do! Has there been a coup?

  • 54. Monty  |  April 30, 2010 at 9:18 am

    Doesn't seem like much more than a thinly veiled threat to me. "Don't do this, or I can't be held responsible for what happens."

  • 55. Andrea  |  April 30, 2010 at 9:41 am

    Ah… I just read the actual letter over at Pam's. It's the kind of conservative rationality that befits a SecDef. The AP article was more than a little bit misleading. And whoever wrote the headline needs a basic Civics refresher course, STAT.

  • 56. Kathleen  |  April 30, 2010 at 9:50 am

    After I read the letter (which is addressed to the Chairman of the House Committee on Armed Services, not Obama — sorry for the error), my view of the story changed. It seems to me that this may be a response to the growing unrest among activists and the administration and Congress looking for an out. The Chairman asks the military for its opinion, the military responds in the "strongest possible terms," and Congress can point to the military and say "see… they say we shouldn't do this."

    It still doesn't change my opinion that all this hand-wringing is doing more harm than good.

  • 57. Andrea  |  April 30, 2010 at 9:54 am

    I completely agree with you, Kathleen. I don't recall any hand-wringing or "studies" or "surveys" back when George HW Bush stopped all gay-related discharges during Desert Storm, and IIRC, he did it precisely because we were at war.

  • 58. Quote For The Day –&hellip  |  April 30, 2010 at 12:15 pm

    […] Background here and here. […]

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