First, let's look at Frank's argument that Scalia's Romer and Lawrence dissents provide evidence of homophobia. Frank quotes Scalia's Lawrence dissent, including this choice passage:
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.Reading these lines with the utmost charity to Justice Scalia, it's possible that he himself isn't one of the people who would shun a gay business partner, scoutmaster or teacher for his children, or boarder in his home, but is only saying that these are attitudes others hold. To what end, though? It's one thing to say that discrimination against gay people is legal and widespread, but Frank is surely right that the tone of Scalia's dissent is at the very least, grossly insensitive.
Justice Scalia's Romer dissent is just as bad, including a passage that Rep. Frank does not quote. In the course of explaining why he thinks that the Court should not be troubled by discrimination against gay Coloradons, Justice Scalia says it is "nothing short of preposterous to call 'politically unpopular' a group which enjoys enormous influence in American media and politics." If you have difficulty seeing this statement as homophobic, imagine that the referent were Jews instead of gays, and ask whether it wouldn't obviously be anti-Semitic.
But now the tricky part. Rep. Frank is right to note that Justice Thomas took pains to distance himself from the policy of the Texas legislature in Lawrence. However, Justice Thomas also joined Justice Scalia's dissents in both Lawrence and Romer. But if those dissents were homophobic and Justice Thomas is, according to Rep. Frank, not a homophobe, why did he join them?
I think two possible (potentially overlapping) answers could be given. One is that the Scalia dissents give rise to a strong suspicion of homophobia, and that because Justice Thomas did not want to be associated with that sentiment, he went out of his way to distance himself. On this view, Justice Scalia's (and the late Chief Justice Rehnquist's) failure to cross-join Justice Thomas's Lawrence dissent reinforces the conclusion that Scalia is in fact homophobic: Unlike Justice Thomas, Scalia approved of the Texas law in Lawrence on policy grounds.
The second point is that the author of a dissent or other opinion has much greater control over its precise wording than a Justice who merely joins. Under the Court's customs, a joining Justice can request specific wording changes that reflect differences in his or her views about the law, but it would have been hard for Justice Thomas to condition his joinder on Justice Scalia "toning down the homophobic rhetoric." That's not to say that Justice Thomas shouldn't have tried to get Justice to Scalia to change some of the most offensive bits, but for all we know, the original versions of the Scalia dissents in Romer and Lawrence were even more homophobic.
Bottom Line: Rep. Frank has made a very strong case that Justice Scalia is more likely to be homophobic than is Justice Thomas.
Posted by Mike Dorf