Justice Scalia Calls Gays an ‘Invented Minority’

In a speech to the Federalist Society  in Bozeman, Montana yesterday, Supreme Court Justice Antonin Scalia called gays an "invented minority" when he referenced recent rulings on same-sex marriage, the AP reports:

A_scalia“It’s not up to the courts to invent new minorities that get special protections,” Scalia told a packed hotel ballroom in southwestern Montana.

The Supreme Court earlier this year cleared the way for same-sex marriages to resume in California and struck down part of a federal law that prevents legally married gay couples from receiving benefits. Scalia voted against the majority of justices.

Changes to the Constitution were made to protect minorities and to give women the right to vote, but that’s not how the court operates today, he said. Rather, a majority of five judges decide issues that should be in the hands of Congress or made through a change to the Constitution.

The Billings Gazette adds:

“We’re now in an age when the high court’s opinions speak of an evolving Constitution,” he said. “It means what it ought to mean. And who decides what it ought to mean?

“Nine lawyers. Actually five lawyers. What, are you crazy? Who would ever set up a system like that?”

Scalia, considered an intellectual leader of the Supreme Court’s conservative wing, said the court’s justices are no better suited to decide what rights ought to exist than is “Joe Sixpack.”

“These aren’t questions for lawyers,” he said. “These are the kind of questions that society debates and decides.”


  1. Dback says

    Yes, and 100 years ago “Joe Sixpack” would’ve classified Scalia as a WOP and discriminated against him in housing, jobs, etc. But, like Clarence Thomas and so many other conservatives, now that he’s got his, he wants to make sure no one else gets theirs.

  2. Paul R says

    I’l be so glad when he’s no longer on the court. His so-called intellectualism is utterly disingenuous and inconsistent, and a perfect example of an out of touch Republican stamping his feet against inevitable social change.

    It’s also really reassuring that he gives so much credence to the views of qualifications of his fellow justices.

  3. Marshall says

    Wouldn’t it be more appropriate to say that laws criminalizing our community invented the minority? And that laws which equalize all relationships between consenting adults actually lessens the need for minority status of the LGBT community?

  4. HadenoughBS says

    Then why does Scalia continue to serve on the Court? Why not resign if he’s so disenchanted with its function?? Oh, I see, that Kenyan Socialist Obama might not appoint a crazy f**ked up conservative to take his place. Uh-huh, I TOTALLY understand this so-called conservative intellectual.

  5. Jack M says

    A Republican is someone who can’t stand to sit down to dinner unless he knows that someone, somewhere, is going hungry.


    I wish for the day where everybody’s sexuality is treated equality as to consider our differences unworthy to be classify as a minority. Till then any denial is a step back. We don’t ask for special rights as this kind of people like to suggest.

  7. jctsf says

    The reich wing uttered no objections when it was Bush v. Gore, 5 v. 4. Sorry, Tony, you can’t have it both ways!

  8. Geoff says

    Scalia had one brain cell, but it fell off, rolled under the fridge…in someone else’s house…in another country…forty years ago.

  9. rroberts says

    @Marshall makes a very good point (laws criminalizing our community invented the minority). When any group of people is singled out for denial of equal rights of any kind, and is defined by any specialized definition (black, transgender, dwarf, etc.,) a minority is automatically invented. People in wheelchairs are a minority, and there are all manner of laws to provide them with access to everything to which a ‘normal’ person usually has access.

  10. northalabama says

    “These aren’t questions for lawyers,” he said. “These are the kind of questions that society debates and decides.”

    and what happens when society debates, but can’t decide, or disagrees? it ends up being fodder for biased justices such as yourself. disgusting, and a violation of his oath:

    “I…do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…under the Constitution and laws of the United States…”

    he should be impeached.

  11. Gregory In Seattle says

    As Marshall noted, the law created that minority when it singled them out for discrimination. And it was acts of Congress which created DADT (which limited the actions and speech only of gay people) and DOMA (which limited the marriage rights of same sex couples), so all of Scalia’s criteria have been met.

  12. says

    “It’s not up to the courts to invent new minorities that get special protections.”

    Sums up what’s wrong with Scalia. Lie 1: gay people are not an invented minority, or laws would not have been created to target them for exclusion. Lie 2: protections are not “special” when they’re ones he already has. Fail, fail.

  13. Anthony says

    He should take his own advice with Bush v Gore.

    Get over it!!!!!!!

    The floodgates have been breached, and he knows it. Nationwide marriage is only a matter of time now.

  14. DoMANique says

    If you’re cis you are the oppressor. He’s right. As a trans woman of color I know true discrimination!

  15. Bill says

    Earth to Scalia: how can a group that makes up a few percent of the population, with membership in the group not a matter of choice, not be a minority?

  16. JJ says

    You have to understand that Scalia thinks the equality promised in the 14th Amendment only applies to race, because that’s the issue that drove its passage. He doesn’t understand that people who aren’t career bigots like himself can encounter a specific injustice and learn a broader principle from it. They can encounter racism–one form of inequality–and learn the broader principle of equality.

    The problem with Scalia’s vision is that Society can _think_ it has “debated and decided” an issue, but then along comes a Scalia who says, oh no, even though the plain language of the Constitution states a general principle, I don’t accept that the Constitution can _ever_ codify a general principle. No, an Amendment, no matter how broadly written, can only speak to the specific problem that motivated it.

    This is how career bigots like Scalia unravel decisions that Society enacted ages ago, and thus grant their bigotry a new lease on life and force Society to rehash the same principles over and over again at tremendous cost.

  17. Markt says

    Our basic set of checks and balances under the Const. places the obligation of protecting ideas and people, that do not have a majority, squarely in the Judicial branch of government. So ever since the ratification (and especially after the passage of the 14th Amendment) Judges are responsible for ensuring those protections. I don’t think he understands our form of government or his role as a judge.

  18. Mary says

    Ernie this is one of the few times where I agree with you completely. You put it perfectly, too.

  19. Dave C. says

    And Scalia is an invented intellectual. The so-called ‘conservative’ justices have the audacity to claim others are the activists, making laws rather than interpreting them. Of course these same people including Scalia, Thomas, etc., have claimed that Corporations are people, but only where it benefits Corporations. So it is OK to be an activist, to create law from interpretation but only when it benefits them and their corporate/ religious backers.

  20. Kevin says

    THe only good thing about Scalia is that his appointmoint ensured that when Bork came up for a seat,Democrats put a stop to it.

  21. GB says

    I hate to agree with him, but I made this point early in the marriage fight. Gays created their own oppressed status to use as leverage in their “struggle” — thus an invented minority. Anything to validate homosexual sex acts. Throw what ever words you want at it.

    We know marriage won, so let the simulation begin… and we’ve never been happier, don’t you agree?

  22. Oshtur says

    You can forgive him a little, this is the reasoning the does to beable to see his celibate son as ‘not gay’ and the same reasoning that the son uses when he writes his various articles about his ex-gay group he belongs to in the Catholic Church.

    There is lots of denial throughout the Scalia family, and that tortuous logic always has strange results. Remember, people like Scalia used to rationalize that the earth was the center of the universe.

  23. GB says

    What I meant to say is that my family hates gay people and seeks to oppress them, so much so that I can’t tell them that I’m actually gay and continue to live a closeted life, not that gays invented being oppressed. Sorry, I’m not sure why I didn’t just say that. I don’t know what possessed me to think that the oppression of gay people is a creation of our community. Must be that old habit of thinking my mother is watching over my shoulder while I’m using the internet.

  24. woodroad34d says

    Does anyone know if he’s been marginalized on the court by the other justices? His blathering and vindictive tone sounds like a kid who hates all the cool kids because they won’t let him play.

  25. Just_a_guy says

    Scalia disrespects his very office. His condemnation of the Court’s power sure sounds like he is actively advocating against the three coequal branches of government that is so central to the entire construction of the core Constitution. He doesn’t seem to respect his duty of impartiality and self-restraint.

    Obama needs to somehow safeguard the future of the Court by reducing Scalia’s power by the time Obama’s term is up. Scalia seems dangerous to the very Ideals that keep America America, no?

  26. says

    I bet he lives in fear that his closet case Catholic priest will get caught in a park or rest stop on his knees.

  27. Sam says

    I’d be willing to bet that Antonin Scalia has never once in his life sat down for a beer with anyone who could be labled “Joe Sixpack”.

  28. Dan Cobb says

    Scalia’s comment makes gays transparent. Non-entities. Phantoms of society. And he has a gay son who is a priest in Catholic church… a priest who is so self-loathing of his own sexuality that he works in conversion therapy to try to turn gay men straight. I imagine that Scalia is as smug and proud of his success in making his gay son to be so utterly self-loathing, than he is of his “career” (such as it is) on the bench.

  29. Bart says

    In the last decade, Scalia has gone from a respected, if not the most respected, member of the Supreme Court to a eye-rolling mega-joke, blind to his own hypocrisy who mistakes juvenile nastiness for debate. He no longer even hides his impartiality, he’s got the couth and demeanor of someone’s smelly uncle who hogs the recliner and farts a lot at family functions, and while written about in the news it’s always now in a veiled-mocking tone. He’s neither relevant or correct anymore, his arguments are specious at best and his logic has gone completely out the window. He lives in a “World by Scalia” that we all must put up with but judging from his appearance and slovenly attitude, it might not be for much longer.

  30. anon says

    It was right wingers that set up gays as a class to be persecuted. If gays had been seen as no big deal or normal, then there would be no need for civil rights legislation.

    The courts have ruled consistently that group classifications must serve an abiding govt. interest. The most obvious are rules designed to protect children based on age. You can’t create laws based merely on animus or some majoritarian morality. Scalia would like to see morality become a sacrosanct basis for law, regardless of the outcome.

  31. johnny says

    If gays are an invented minority, it’s because Scalia’s God invented them a long, long time ago and they’re just now getting the legal and social testicals they’ve lacked since creation.

  32. bructer says

    you will never change that jacka** he just needs to be ignored. And hope he retires or something else get him out of the Supreme Court. He is a disgrace to humanity.

  33. Jim says

    Scalia’s legal opinions are registered in dissents from majority rulins. That means he’s on the losing side. That means his opinions don’t matter squat when it comes to law. Who cares what a loser thinks?

  34. REAL GB says

    Somebody’s got a closet fixation. I came out at 17, my brother at 21 No problem. We both opposed marriage. It was the desire to have hetero simulated marriage at all costs by some By creating a this climate of oppression — it was a subtle strategy similar to the minority mold of demanding rights, but in this case gays to marriage– when that desire for the straight ritual had not existed prior.
    (I target the clueless late sixties born)Imitation is a form of flattery (GB) but also of a spineless queen. Everything doesn’t come down to the closet, and I think we all know who champions this theory at every chance.

  35. Keith says

    And yet we have the Citizens United decision, even though nowhere has there ever been an amendment to the US Constitution declaring that corporations are human beings entitled to 1st Amendment Rights. I guess you get to pick and choose when you’re an originalist, and when you just want to get original in your interpretation of the Constitution.

  36. Daniel in MO says

    Invented? Well the various religions were invented, but they still get legal protections so that argument is pretty weak.

  37. Tarc says

    Oh, we all know Scalia is and has been an intellectually and morally bankrupt shill for the looney far right for ages now. Nothing he says is relevant after we’ve already established he’s ready for a straightjacket…

  38. Randy says

    Given this “invented minority” crap, I think he should be asked to reaffirm his commitment to “stare decisis”, regarding Romer, Lawrence, and Perry.

  39. says

    As a decendent of “Mixed-American” and “Sicilian-Fresh Off The Boat” I feel I have a right to call the Scalia pig what he truly is: a dumb Ginny. On a side note, I used to be a paid member of the ACLU, until I realized they think this Scalia pig is just great, even after all the horrid twisted things he had said that I pointed out to them. The person I corresponded with actually used the word “friend” when discussing the ACLU’s dinners they have held for and continue to hold for in honor off this Scalia pig. Needless to say, I no longer give ACLU money, but continue to give to places like Americans United for Separation of Church and State; http://www.AU.org

  40. IJelly says

    We get it Antonin, if there’s no such thing as gay people and only gay sex, that means your celibate priest/ex-gay counselor son isn’t gay.

    If you hadn’t harmed so many people already, someone might actually feel sorry for you.

  41. CAnaive says

    Invented minority?!? Oh well. That reminds me…this member of the invented minority has to do some housecleaning this morning. Every now and then I have to scrub off that nasty scalia that accumulates on the side of my toilet bowl.

  42. Koskalaka Maricón says

    Again, maybe it’s just me, but the words “justice” and “scalia” do not belong together, this sentence notwithstanding. If I had my druthers and I couldn’t unseat him or persuade him to retire, I’d give him a new title: “Injustice Scalia.” This title seems to ring truer to both my mind and ear.