Justice Scalia Was Lucky He Didn't Get the Santorum/Google Treatment

By Mike Dorf

Before "Who is Rick Santorum?" becomes no more than the "question" to the Jeopardy "answer," "who finished within eight votes of the winner of the 2012 Iowa Republican Caucuses?", it is worth reflecting on what then-Senator Santorum said that earned him history's crudest Google-bomb.  Here is the key passage from his 2003 Associated Press interview in which Santorum fretted about the implications of the Supreme Court ruling that a law banning homosexual sodomy is unconstitutional:
We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out. And the further you extend it out, the more you — this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.  Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing.
Recently Senator Santorum said that the final line there was trying to distinguish homosexuality from bestiality, but as Dan Amira explains in a New York magazine essay, that's highly implausible.  Santorum's point in 2003 was to unleash a parade of horribles, including bigamy, polygamy, adultery, and homosexuality.  It's impossible to read the foregoing passage as distinguishing homosexuality from those other horribles and thus there's simply no reason to think that Santorum wasn't also comparing homosexuality to bestiality.

Just two months after Senator Santorum made his homosexuality/adultery/bestiality comparison, the Supreme Court vindicated his fears in Lawrence v. Texas, leading Justice Scalia to . . . well, to go all Santorum himself.  Here's Justice Scalia's own parade of horribles:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of [the majority opinion in] Bowers [v. Hardwick's] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.   . . .The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge.
Justice Scalia's list is Senator Santorum's list plus masturbation, fornication, prostitution, and obscenity.  So, one wants to know, why did Senator Santorum, but not Justice Scalia, get Google-bombed?

I suppose part of the answer could be that Senator Santorum had the first-mover (dis)advantage.  Lawrence was decided on June 26, 2003, exactly two weeks after Dan Savage had announced the winner of his contest to redefine "Santorum," since memorialized with the notorious Google-bomb for the website spreadingsantorum.com.  A Google-bomb of Justice Scalia coming so close on the heels of the Santorum Google-bomb was thus unlikely.

Another (non-exclusive) possibility is that Senator Santorum deserved to be ridiculed in a way that Justice Scalia did not, because Santorum was expressing a policy view, while Justice Scalia was merely stating a view about what the Constitution protects.  I find this explanation implausible, however.

It's clear from his reference to the then-pending Supreme Court case and his criticism of Griswold v. Connecticut that Senator Santorum, just like Justice Scalia, was expressing a view about the proper interpretation of the Constitution, not necessarily a view about what legislation should be enacted.  As Senator Santorum recently reiterated, he thinks Griswold was wrongly decided but he also believes that state legislatures should not ban contraception.  That position is at least as liberal as Justice Scalia's.  I don't think Justice Scalia has ever said whether he thinks, as a policy matter, that contraception ought to be prohibited, but he may have.

In any event, if Justice Scalia got a pass because he was only saying that homosexuality is constitutionally indistinguishable from bestiality, etc., then Senator Santorum should have gotten a pass also.  And conversely, if one thinks that constitutional views often reflect normative views, then criticism of Senator Santorum for an offensive comparison should have been paired with similar criticism of Justice Scalia.

In fact, Justice Scalia has occasionally taken some heat for his Lawrence dissent on grounds that it reflects not simply a jurisprudence of judicial restraint but homophobia.  Most pointedly, Rep. Barney Frank contrasted Justice Scalia's Lawrence dissent--which Rep. Frank said was homophobic--with Justice Thomas's Lawrence dissent--which Rep. Frank said was not homophobic.  Justice Thomas, quoting Potter Stewart's Griswold dissent, said that he thought Texas's anti-sodomy law was "profoundly silly," adding that if he "were a member of the Texas legislature," he "would vote to repeal it."  Although Justice Thomas joined Justice Scalia's dissent--thereby demonstrating that he too thought homosexuality constitutionally indistinguishable from the other offenses listed by Justice Scalia--Justice Scalia did not join Justice Thomas's dissent.  Rep. Frank thought this showed that Justice Scalia would not have voted to repeal the Texas law were he a member of the Texas legislature, and that was because Justice Scalia affirmatively favors laws that disadvantage LGBT persons, rather than merely finding them constitutionally permissible.

Whatever one thinks of the merits of Rep. Frank's case for Justice Scalia's homophobia, it's pretty clear that Justice Scalia got off easy, relative to Senator Santorum.  And it's not clear--at least to me--that Justice Scalia deserved to be treated any better than Senator Santorum.  Perhaps in a parallel universe there is a tasteless website called "spreadingscalia.com."
P.S.  In case there's any doubt, I want to be perfectly clear that I'm expressing curiosity about the different treatment of Senator Santorum and Justice Scalia.  I'm not saying that either of them deserved to be Google-bombed.