Scalia was appointed by President Ronald Reagan to the bench in 1986 and known for his conservative views on issues ranging from abortion to same-sex marriage.
He was one of four dissenting justices in the Obergefell decision legalizing marriage equality last year. In his dissent, he wrote the majority “invent[ed] a new right and impose[d] that right on the rest of the country.”
He praised “the debate over marriage for same-sex couples [as a display of] American democracy at its best. But he also lamented the 5-4 decision for “ending the national debate.”
“Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views,” Scalia wrote. “Win or lose advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”
Scalia was a familiar voice of dissent in other notable LGBT cases. In the case Lawrence v. Texas declaring state sodomy bans unconstitutional, he wrote the court had “taken sides” in the culture wars.
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity [are now] called into question. The court has largely signed on to the homosexual agenda,” Scalia wrote.
Scalia stood by the comparison when asked by a student in 2012.
“If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia replied. “Can we have it against other things? I don’t apologize for the things I raise.”
In a discussion between Scalia and Justice Ruth Bader Ginsburg at George Washington University in Washington, D.C. last February, Scalia asked the audience not to paint him as “anti-gay.”
His opinion in the Obergefell this spring will not pertain to the “substance” of whether couples should have the right to marry, but the issue of legal interpretation.
“That isn’t the issue,” he said. “The issue is who decides. Should these decisions be made by the Supreme Court without any text in the Constitution or any history in the Constitution to support imposing on the whole country or is it a matter left to the people?”
But his death also has another clear impact: will President Obama appoint a successor?
Not likely, wrote Emily Farris, assistant professor of political science at Texas Christian University in Fort Worth.
“I think it will be very difficult for Obama to get a nomination done in the midst of an election year. Even before Scalia’s death, people were predicting the 2016 presidential election could lead to a cataclysmic reshaping of SCOTUS,” Farris wrote.
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