Supreme Odds: How Will Justice Antonin Scalia Vote On Marriage Equality? (We’ll Give You One Guess)

The depth of U.S. Supreme Court Justice Antonin Scalia’s antipathy to things gay became apparent in 1996, ten years after he joined the court.

He had voted against the interests of gays before—allowing the U.S. Olympic Committee to bar Gay Games from calling itself Gay Olympics and allowing the organizers of the St. Patrick’s Day Parade in Boston to exclude an openly gay contingent.

But in 1996, he led the furious dissent against the 6 to 3 majority opinion in Romer v. Evans. The majority had struck down Colorado’s Amendment 2, which would have barred any political subdivision in the state from prohibiting discrimination based on sexual orientation. The majority said Amendment 2 had been driven by “animus,” not a legitimate governmental interest. But Scalia defended the measure as a “modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

Then in his dissent in the 2003 case, Lawrence v. Texas, which declared unconstitutional sodomy laws, Scalia inveighed:

How about we take this to the next level?

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Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed…

The rhetoric in both cases was so baldly antigay that it seemed ripped from the pages of the far-right playbook, and not worth of a supreme court justice, not matter how conservative.

We’ve gone back and taken a look at how all the justices have voted on gay-related cases, where a vote can be discerned, over the past 30 years. And we’ve looked at how often they’ve been clustering around the traditional liberal-conservative poles in the current session. Here’s what we think the odds look like, statistically speaking, for Scalia, as well as some other factors to weigh in when considering his vote:

Percent voted pro-gay: 31

Percent voted with liberal wing: 12

Odds for two pro-gay decisions: 1 to 5

Appointed by: President Reagan

Age: 77

Religion: Catholic

Most notable cases: In both Romer v. Evans and Lawrence v. Texas, Scalia led wrote the dissent.

Interesting factoid: One of Scalia’s sons serves as a Catholic priest to a group called Courage whose mission is to “to help persons with same sex attractions develop an interior life of chastity and move beyond the confines of the homosexual identity to a more complete identity in Christ.”

Notable remark during Prop 8 argument: “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.”

Notable remark during DOMA argument: Suggesting to BLAG attorney Paul Clement a reason why “uniformity” could justify a federal definition of marriage that excluded same-sex couples: “I thought you didn’t want the voters in one State to dictate to other States any more than you would want the courts in one State to dictate to other States.”

Lisa Keen, co-author of Strangers to the Law: Gay People on Trial, will be posting nearly daily on legal matters leading up to and beyond the Supreme Court decision. Her coverage on this and other issues is also available at KeenNewsService.com.