Scalia's Gay Stance Is Unacceptable: Recusal From Supreme Court Deliberations on DOMA and California Proposition 8 Is Called For

The furor over Supreme Court Justice Antonin Scalia's prejudicial stance against gay and lesbian Americans should not go away and ought to cause the Chief Justice and his court colleagues to insist that he, at the very least, recuse himself from the upcoming cases regarding the Defense of Marriage Act and the overturning of California's Proposition 8.

This is not just a question of a political point of view, which, depending on whether a justice leans right or left, often determines his or her vote on a particular case. Rather, this is a Supreme Court justice who, on numerous occasions, has aired his prejudices against the personal choices of human souls in the country he has sworn to protect as a distinguished jurist. How can he uphold his oath to serve when he has a personally vested interest in the case?

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "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."

And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "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."

Justice Scalia's bias clearly hampers his judgment to deliver a balanced view of what should be acceptable or not under our Constitution. Defending his stance at Princeton last week, using the legal argument "reduction to the absurd" in a condescending response to student Duncan Hosie, he said, "If we cannot have moral feelings against homosexuality, can we have it against murder?" He insists he does not equate the two, but even talking about it in this manner, can he be taken seriously?

Scalia tries to play it both ways, almost in a self-protective manner, having said, defending his dissent against overturning the bigoted Colorado law in 2003, "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." But in suggesting that a majority moral viewpoint must be upheld in all instances, and in putting homosexual conduct in the same sentence as murder, or, in the Texas instance, putting homosexuality in the same phrase as bestiality, Scalia is showing his true colors.

Whether or not there is a presumption of moral disapproval with respect to homosexuality and murder, can a reasonable person -- nay, a Supreme Court justice -- not see the difference between moral disapproval regarding a deed that concerns two human beings acting amongst themselves in a consenting manner and does no one else harm, and an act that perpetrates a violent end to another or involves a helpless animal?

Scalia's elevation of all moral disapproval to the same level to the extent that they can be legislated by a politically elected body or the populace is counter to logic and harmful to citizen rights, as indeed was the case when there was moral disapproval to women getting the vote and to interracial marriage. Is moral disapproval to the kind of music played on the radio or how people dress up there, too?

His public stance has already been demonstrated, in spite of his supposedly tempering remarks that say, in effect, "Hey, I've got no beef with gays," a statement that can't truly be believed when one takes into account Scalia's Supreme Court votes, speeches and writings on the subject.

In the past, when a justice has even a slight involvement in a case or issue through past association or family connections, the jurist normally recuses himself or herself. Just last year Justice Elena Kagan recused herself from consideration of the Arizona immigration law because she'd been solicitor general when the U.S. government filed suit against the state.

Indeed, federal law requires that a "justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," or if they, in a previous federal job, "participated as counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy."

That being the case, Justice Scalia must recuse himself from the issue.

I'll even go a little further. For his generally harmful and rabble-rousing remarks, which clearly stir up discriminatory, possibly physically harmful anti-gay feelings, it may be time to consider impeaching him. If the House of Representatives could do so in the aftermath of a consenting sexual interlude of a president, there are more grounds to vote Antonin Scalia out for conduct and words unbecoming of a Supreme Court justice.

Michael Russnow's website is