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<h1 class=""><font size="4">Justice Scalia, "Originalism" and Homosexuality
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<span class=""><font size="4">Posted: 04/17/2013 9:58 pm Huff Post </font></span></div><div style="padding-top:15px" class=""><span class=""><font size="4">by Geoffrey R. Stone, Professor of Law, University of Chicago</font></span></div>
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<p><font size="4">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? </font></p>
<p><font size="4">According to the <em>Wall Street Journal</em>, 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." </font></p>
<p><font size="4">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.</font></p>
<p><font size="4">According to the <em>Wall Street Journal</em>, 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."</font></p>
<p><font size="4">One has to wonder whether Justice Scalia knows <em>anything</em>
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. </font></p>
<p><font size="4">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.</font></p>
<p><font size="4">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. </font></p>
<p><font size="4">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.</font></p>
<p><font size="4">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. </font></p>
<p><font size="4">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."</font></p>
<p><font size="4">If one is going to be an "originalist," at least one should be consistent about it.</font></p>
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