The Justice doth protest too much

You can listen to the comments from Justice Scalia described in this post here:



Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuels wrote that

there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss? 

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California.  Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage.  So Justice Scalia tried to help him out, declaring:  

Justice Antonin Scalia

I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­ there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.

Scalia is wrong.  As Prof. Clifford Rosky pointed out in his guest post to this blog: 

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

 Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage.  But what do pediatricians know about children anyway?  It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage.  The organization said so in an amicus brief filed in this very case.  The brief notes that 

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

We’ve previously noted this Huffington Post story which points out: 

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 has an interesting definition of “takes no position.”