Supreme opponent: on the eve of a major ruling on sodomy laws, the Supreme Court's top conservative, Antonin Scalia, takes no pains to hide his opposition to gay rights. (Court).

Just weeks before the U.S. Supreme Court was scheduled to announce its decision in Lawrence v. Texas, a historic legal challenge to same-sex sodomy laws, Antonin Scalia traveled to Philadelphia. In a packed ballroom at the elegant Union League, the Supreme Court justice mingled with supporters and delivered a speech about church-state separation.

Scalia's appearance would have been unremarkable except for one fact: The sponsor was the Urban Family Council, a right-wing group that describes homosexuality as "an immoral lifestyle choice." Urban Family Council founder William Devlin, who is suing the city of Philadelphia to block implementation of its domestic-partner benefits law, told The Advocate that as a defender of sodomy laws, he is "one of those folk who believes that government should be in our bedroom."

Scalia's presence at the event, held in honor of Cardinal Anthony Bevilacqua, head of the Roman Catholic archdiocese of Philadelphia, does not violate ethical guidelines governing the behavior of federal judges. But timed as it was, it raised the hackles of gay rights advocates who view Lawrence as one of the most important cases since Bowers v. Hardwick, the 1986 ruling upholding Georgia's sodomy law.

"Speaking to an antigay crowd certainly leaves the impression that Scalia does not have an open mind and is, in fact, most comfortable hanging out with one set of ideological bedfellows," says Evan Wolfson, who unsuccessfully argued the gay rights case before the court in Dale v. The Boy Scouts of America in 2000. "But as troubling signs go, this is one of the lesser ones, given the fact that he closed his mind to our arguments long ago."

"All the justices are well advised to be careful about perceptions of their impartiality," adds Susan Low Bloch, professor of constitutional law at Georgetown University Law Center in Washington, D.C. "But it's unrealistic to think they must pay attention to every paper or Web site a group has ever put out. Scalia is willing to socialize with the public, and that's a good thing. And if anyone thought he came into the Lawrence case open to new ideas, they're going to be disappointed."

Even Devlin, a longtime gay rights foe and Philadelphia political gadfly, conceded that even though Scalia's appearance violated no ethical guidelines, it created the appearance of a conflict. "I can understand the concerns," he says. "At the time I invited Scalia, it really didn't enter my mind, and I don't think it did Scalia's either. The event we were planning had nothing to do with any issue before the court. But it is true that conservatives often fear that some liberal justices win never have an open mind about our anti-abortion arguments, so I can see how Scalia showing up at our door would bother some in the gay community. That was never my intention."

Scalia has had an unyieldingly antigay judicial record since President Reagan appointed him to the court in 1986. It would count as an upset of monumental proportions if in Lawrence Scalia failed to endorse states' right to criminalize same-sex sodomy, especially given his comments during oral arguments. After comparing sodomy laws to bans on "flagpole sitting," Scalia wondered aloud if striking down the Texas statute might encourage gay teachers to "induce [children] to follow the path of homosexuality."

In a furious dissent in Romer v. Evans, the 1996 decision striking down a Colorado law preventing the enactment of any and all bans on discrimination based on sexual orientation, Scalia famously accused the majority of mistaking a "kulturkampf for a fit of spite." (Kulturkampf is German for "culture war.") And in the 1984 case Dronenburg v. Zech, Scalia, then a member of the District of Columbia court of appeals, ruled that the right to privacy does not extend to gay people. There is "no constitutional right to engage in homosexual conduct, and as judges we have no warrant to create one," he wrote. (Two years later in Bowers, a 5-4 majority of the Supreme Court made essentially the same argument.)

Scalia's judicial philosophy leaves little room for compromise. Often described as a "strict constructionist" for his literal interpretation of the original intent of the Constitution, he eschews the case-by-case approach favored by court centrists Sandra Day O'Connor and Anthony Kennedy. When it comes to sexual orientation and the law, Scalia takes his cue from a British document. Responding to the Wolfenden Report, a 1957 study advocating the decriminalization of homosexual activity between consenting adults in Great Britain, Lord Patrick Devlin, a prominent judge, argued that society's "general abhorrence of homosexuality" is sufficient basis for sodomy laws.

William Eskridge, a gay professor at Yale Law School, has socialized with Scalia. "He's obviously comfortable with gay people and is always open to vigorous debate--on and off the bench," Eskridge says. "But he definitely believes that the state can regulate morality and that homosexuality is a moral issue. He believes that the democratic process should make decisions about private morality, even what goes on in people's bedrooms. It doesn't mean that he would necessarily personally vote for sodomy laws, but that if he does, the courts should not take away the decision."

That take-no-prisoners approach sends chills down the spines of civil libertarians concerned about the tyranny of the majority. However, it often has a similar effect on Scalia's colleagues on the court, undermining the force of his arguments. "Scalia's dissents are more like operas than legal arguments," Eskridge says. "He loves the sweeping language and emotions of composers and poets. To his credit, he brings a lot of emotional effusion the law. But that approach has scared some of his fellow justices--who are much more aware of the consequences of the court's actions--to the center. He's not very good at persuading others. Not very good at all."

Sodomy ruling

At press time the U.S. Supreme Court had not issued its decision in Lawrence v. Texas. For the latest, go to www.advocate.com.