CNN Senior Legal Analyst Jeffrey Toobin said that it wasn’t legal “to talk about gay people the way Justice Scalia used to talk about gay people” while recounting Scalia’s prior dissent in Lawrence v. Texas on Friday’s “CNN Newsroom.”
Toobin said Scalia’s dissent was “very different. And I think, if you want illustrations of how much the country has changed in the past decade or so, you need only look at Justice Scalia. Because in 2003, in the case of Lawrence v. Texas, he also dissented, another Anthony Kennedy opinion. And that was the case that said gay people could not be criminally prosecuted for having sex. And listen to this, what Justice Scalia wrote in 2003. He said, ‘Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.’ I mean, really, just outward bigotry against gay people. Now, today Justice Scalia begins his dissenting opinion by saying this issue is of no particular importance to me, and the only real issue here is the democratic process, who makes the decisions, should it be the courts? Or should it be the people? Even Justice Scalia, who is the biggest social conservative on the court, he cannot talk the way he used to talk about gay people because culturally, politically, even legally, it’s simply not appropriate, and even legal in many — in ways to talk about gay people the way Justice Scalia used to talk about gay people.”
Later, during the afternoon broadcast, he stated of Scalia, “Well, you know, he has become the ‘get off my lawn’ justice. He is so angry all the time, you would think he lost every case when, in fact, the conservatives on the court, of whom he is a senior member, usually win most cases. But the healthcare case yesterday and the marriage case today have really set him off, and today, it was not so much the rhetoric about the issue, but it was the attacks on Justice Kennedy personally…was really a kind of breach of decorum that, even in the spirited dissenting opinions that the justices are known to write, was really kind of over the top.