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Despite wisecrack, it’s not Scalia’s court on gay marriage anymore

U.S. Supreme Court analyst Jeffrey Toobin says  “the Fox News Justice” is out of step with the court.

New Yorker writer Jeffrey Toobin thinks the Supreme Court may have moved beyond Justice Scalia’s views on gay marriage.
REUTERS/Darren Ornitz

An anti-gay-rights “demonstrator” briefly disrupted the U.S. Supreme Court oral arguments Tuesday on the question of whether same-sex couples have a constitutional right to marry.

The man rose from the gallery yelling: “If you support gay marriage, you will burn in Hell! …It’s an abomination!”

In the awkward moment after the man was taken away by security, Justice Antonin Scalia remarked: “That was rather refreshing, actually.”

Writing for the New Yorker, long-time Supreme Court analyst Jeffrey Toobin made this the entry point for his short piece about the day’s historic hearing. Toobin didn’t care for Scalia’s crack and didn’t assume that it was just a joke meant to break the tension after the interruption of the day’s otherwise dignified proceedings. Wrote Toobin:

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Scalia more or less shared the protester’s view of the immorality of homosexuality, and … he regards the Court’s toleration of gay people as one of the great disasters of his nearly three decades as a Justice.

Toobin is apparently pretty sick of Scalia, whom he described as “the Fox News Justice, who appears to use conservative talking points to prepare for oral arguments.” He gave an example or two of that from the day’s proceedings.

But he also noted that none of the other conservative justices, including those who are universally expected to vote against using this case to nationalize a right of gays to marry, said anything at all disparaging about homosexuality. Toobin wrote that:

Scalia’s counter-outburst was a notable contrast to the respectful tone of the rest of the argument, including from his fellow-conservatives. It is one measure of the success of the gay-rights movement that all the other Justices felt compelled to phrase their questions in ways that honored the humanity of gay people.

Toobin ended his short piece this way:

The most likely outcome still looks like a victory for the plaintiffs and marriage equality in all fifty states. At a minimum, even before the decision is announced, the argument itself was an example of how much the country, and the Court, has changed on the subject of gay rights. On this issue at least, it’s not Scalia’s Court anymore.