Here’s Why Scalia Should NOT Recuse Himself From The Gay Marriage Cases

Antonin Scalia

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Justice Antonin Scalia’s most recent remarks about gays came at a strange time.Just a few days after the Supreme Court agreed to take on two huge gay marriage cases, Scalia said laws banning homosexuality were OK because lawmakers could bar “immoral” behaviour.

“If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia asked while speaking at Princeton.

The remarks enraged New York City’s openly gay council member Christine Quinn and spurred LGBT activist George Takai (of Star Trek fame) to call for Scalia to consider recusing himself from the gay marriage cases.

“He is clearly biased on this issue, so how can he look at the issue and make a judgment fairly?” Takai said in an MSNBC interview, according to Gay Star News.

It’s a fair question. In a dissent opposing the Supreme Court’s decision to strike down Texas’ sodomy laws, Scalia included a number of arguments that could have been construed as anti-gay even way back in 2003.

Scalia warned against forcing states to decriminalize “homosexual acts” without the will of their citizens. He pointed out that a lot of people don’t want gays working with them or teaching their children.

Should a justice who thinks sodomy laws are OK really be deciding whether gays can marry?

Reuters’ Alison Frankel posed the question to six Supreme Court litigators. Every single one said there was absolutely no reason Scalia should recuse himself.

The Supreme Court lawyers told Frankel that previous decisions can’t be reason enough for recusal because, if they were, justices would have to recuse themselves all of the time.

Sure, we probably know which way Scalia will come down on gay marriage.

But we knew which way Elena Kagan was going to come down on health care, and that wasn’t reason enough for her to step aside, Frankel pointed out.

Scalia is likely to make some controversial comments during oral arguments, but by doing so he’ll give lawyers arguing for gay rights a chance to respond directly to anti-gay rhetoric.

That might be better than putting muzzle on Scalia, as anti-gay as his remarks might seem.

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