Barney Frank’s Name-Calling
by Ed Whelan
Barney Frank’s attack on Justice Scalia as a “homophobe” is inane at several levels:
First, the term “homophobe” is an ugly epithet designed to stigmatize (“he’s the sicko”) those who don’t embrace the homosexual agenda. It’s intended to cut off serious discussion, not to promote it. It doesn’t belong in public discourse.
I much prefer the descriptors “anti-gay animus” or “anti-gay prejudice” to the less transparent term “homophobia.” After all, it’s about the behavior. But then you get into unwieldy territory when trying to describe a person who engages in this behavior, such as Justice Scalia. We all knew what Congressman Frank meant. It doesn’t cut off serious discussion at all; it merely requires people with anti-gay animus to explain why, if they have it, they consider it an insult to point out that they have it. To better understand what “those who don’t embrace the homosexual agenda” don’t embrace, see here and here.
Second, Frank uses his epithet in the course of expressing his concern that a Supreme Court that includes Scalia might not strike down the federal Defense of Marriage Act. The Defense of Marriage Act was approved by overwhelming majorities in each House of Congress (85-14 in the Senate, 342-67 in the House) in 1996 and signed into law by President Clinton.
Impressive, if you’re impressed by cowardice. That doesn’t guarantee that the law is constitutional, however. Making that determination is the purview of the judicial branch (you may remember this from junior high civics).
Senators in favor of DOMA included Biden, Bradley, Daschle, Kohl, Leahy, Levin, Lieberman, Mikulski, Murray, Reid, Sarbanes, and Wellstone. Millions and millions of voters in state after state have acted to preserve traditional marriage. Does Frank regard all these Americans as “homophobes”?
I suspect that many of these Senators have had time to reflect on their 1996 votes by now. To the extent that they, and “millions and millions” of non-Senatorial Americans, voted to ignore the full faith and credit clause of the federal Constitution, or to write discrimination against a group of citizens into their state Constitutions, they were either acting on anti-gay animus or failing to oppose it. People can be wrong. When they learn and change their minds, we can applaud them for that. Senator Schumer also voted for DOMA.
Third, Scalia’s position is clear: The Constitution does not address the matter of same-sex marriage. Therefore, the political processes are free to decide whether or not to adopt it. He, as a justice, will defer to the political processes, whatever the result.
In other words, on this matter as on so many more, Scalia will not indulge his own policy preferences (whatever they are) and will not write those preferences into the Constitution. Frank wants liberal activist justices who will indulge his and the Left’s own policy preferences on homosexual matters (and so much more). That’s his real beef with Scalia, and he’s masquerading it under the “homophobe” label.
Does this mean that Justice Scalia won’t deploy one argument for states that have voted to prohibit marriage equality, and another for states that have voted to allow marriage equality? That’s good, because it looks like Vermont will be the first state to legislatively affirm marriage for all couples, and it will certainly be followed by others. One can only imagine the silly arguments we will undoubtedly now hear about how the legislature overstepped its authority. That should be fun to watch, but I’m glad to hear that Justice Scalia will not be indulging them.
I’ll leave to others whether Frank’s name-calling is a tactic designed to distract attention from his role in causing the ongoing financial crisis.
That’s a relief. Because if Mr. Whelan were to inadvertently imply such a thing it would be irrelevant at best and an ad hominem at worst – the very same accusation with which he launched this diatribe.
I’m so glad we had this little talk.