By Tony Mauro, From The National Law Journal

Justice contends there’s no limit on court protection of other minority groups.

Justice Antonin Scalia delivers a speech to first year law students at Georgetown Law Center, on Monday, November 16, 2015.

TO THE PEOPLE: Only the elected officials in a democracy, not judges, should decide to which minority groups constitutional protections should extend, Scalia said last week at Georgetown Law.

When U.S. Supreme Court Justice Antonin Scalia suggested last week that allowing judges in a democracy to decide which minorities to protect could encourage pederasts and child molesters to seek constitutional protection, his remarks were offensive to some but old-hat to others.

“What about pederasts? What about child molesters?” Scalia asked rhetorically on Nov. 16 in a talk before first-year law students at Georgetown University Law Center. “Nobody loves them.” The Constitution, he said, offers specific protections to political and religious minorities under the First Amendment, but ­otherwise elected officials should make such determinations.

Rather than asking judges to decide who deserves protection, Scalia told the students, “If you believe in democracy, you should put it to the people.”

Stripped of the provocative hypothetical, Scalia’s point appeared to be that by recognizing same-sex rights without a basis in the Constitution, the Supreme Court was setting a precedent for similar claims from other discrete groups. Scalia has consistently dissented in pro-gay rights cases, often painting similar slippery-slope scenarios that involve other unpopular groups.

“In a world in which the court has struck down the Defense of Marriage Act and laws against same-sex marriage, it is clear that LGBT people are a protected class, and to draw these vile comparisons is completely inappropriate,” said Sarah Warbelow, legal director of the Human Rights Campaign. “The law draws bright lines all the time,” she added, asserting that protecting gay rights won’t open the door to protecting child molesters.

EXPERIENCE RATHER THAN ‘LOGIC’

Roberta Kaplan, the lawyer who argued and won the 2013 case striking down the Defense of Marriage Act, agreed. For decades, she said, “Justice Scalia has argued that by recognizing the rights of gay people under the Constitu­tion, we are losing the ability to constitutionally prohibit certain immoral behaviors. But the life of the law is not logic, but experience.”

Kaplan said “no one would argue that child molesters don’t cause enormous, lasting damage to their victims and others. By the same token, most people today understand that recognizing the dignity of gay people under the law not only does not harm anyone, but only provides very concrete and dignitary benefits to so many gay Americans and their families.” Kaplan is a partner at Paul, Weiss, Rifkind, Wharton & Garrison.

Conservative commentator Edward Whelan, a former law clerk to Scalia, dismissed the criticism.

“Scalia was simply making the same point he’s made repeatedly over the years: that, beyond certain limits, the Constitution leaves to the democratic processes which groups deserve protection,” Whelan said. “He was making that point of principle. He wasn’t saying or implying that one group is in any other respects like the other.”

Scalia did not respond to requests for comment.

In the 1996 decision Romer v. Evans, the high court struck down a Colorado law that, in the majority’s view, singled out homosexuals for disfavored treatment. In dissent, Scalia said the court’s ruling could lead to the invalidation of laws prohibiting polygamy. He reasoned that polygamists, like homosexuals, could argue that they have been unfairly singled out for mistreatment.

HARSH RESPONSE TO ‘LAWRENCE’

Scalia broadened his target when he dissented in Lawrence v. Texas, the 2003 decision that struck down anti-sodomy laws on the grounds that criminalizing “certain intimate sexual conduct” between same-sex couples violates the due process clause.

Scalia saw that as an open invitation for anyone to challenge state laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He declared that “Every single one of these laws is called into question by today’s decision.”

In Obergefell v. Hodges, which recognized the right of same-sex marriage, Scalia did not offer a parade of horribles but in a sense offered a preview of what he would say to the Georgetown students. “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to ­violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

His colleagues shrug off the ­fervid rhetoric, and the 79-year-old justice himself seems unconcerned whether his freighted predictions come to pass or whether his forceful language costs him votes and influence.

Court scholar Melvin Urofsky, author of a new book on Supreme Court dissents, recently suggested that Scalia’s vituperative dissents — verbal and written — are ineffective.

“In terms of style, it’s typical Scalia, but it’s not going to change anybody’s mind,” Urofsky said, referring to Scalia’s scorching dissents in the term that ended. “That’s what an important dissent does. It lays out a reason why people should change their minds, why lower courts should be looking past the majority opinion. His doesn’t do that. It’s just a lament.”

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Photo: Diego M. Radzinschi/NLJ

DISSENT: Scalia wrote in dissent in Obergefell v. Hodges, the landmark same-sex marriage case. The justice argued that the unelected members of the court should not decide the policy question.

Photo: Diego M. Radzinschi

For more on this story go to: http://www.nationallawjournal.com/id=1202743009243/Scalia-Sees-Slippery-Slope-After-Historic-GayRights-Ruling–#ixzz3szXs1WHf