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Did Eugene Scalia Disavow His Dad's Ruling on Sodomy?

Vivia Chen

September 23, 2019

Eugene-Antonin-Scalia-Article-201909202110

 

The apple is falling farther from the tree.

As you probably know, Eugene Scalia, son of you-know-who and a big shot lawyer in his own right (he made over $6 million last year as a partner at Gibson, Dunn & Crutcher, for goodness sake!), has been nominated by President Donald Trump to be our next labor secretary.

He just sailed through his Senate confirmation hearings, but here’s what caught my little ears: He was asked by Democrats about his views on firing gay or transgender employees. He gave the answer that you’d expect from any Big Law partner—that it’s wrong. He testified: “I think that most of my clients had policies against that. Certainly, my firm did. It’s something that would not have been tolerated by me or my firm or most of my clients.”

Hit pause. Because this is coming from the mouth of the son of the late Antonin Scalia, who wrote that famous dissent in Lawrence v. Texas (the 2003 U.S. Supreme Court decision that struck down Texas’ same-sex sodomy law) railing against the legal profession for promoting the “anti-antihomosexual culture.”

In language that seems wildly antiquated now, Scalia wrote in the dissent: “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.”

Well, it looks like the father’s fears have been realized. His own son seems fine with the normalization of LGBTQ culture. In fact, you might say the son just threw his father’s legendary dissent into the dustbin. (Scalia declined to comment.)

But Eugene wasn’t always so cool. He admits his views have changed over the years, reports National Law Journal’s Marcia Coyle on Law.com. Asked about a 1985 college article he authored in which he expressed disapproval of the gay lifestyle and his membership in an anti-LGBTQ group, Scalia told the Senate committee: “Yes, I certainly have changed in how I view any number of things since I was in college. I think we’ve all matured—one would hope—since those days. I would certainly enforce the law in this area and respect the decisions of the Supreme Court.”

To be clear, though, Eugene didn’t say he’ll go to the mat for LGBTQ rights in the workplace. He’s too good a lawyer to be pinned down.

As Coyle reports, he “did not answer directly on whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers because of sexual orientation or transgender status.” Instead, he told the committee: “We’ll see what the court decides,” alluding, probably, to the three upcoming U.S. Supreme Court cases involving LGBTQ workers.

That said, Scalia seems to have undergone a genuine transition. Disavowing that college article, he said: “I wouldn’t write those words today. I now have friends and colleagues to whom they would cause pain. I would not want to do that.”

Which raises this intriguing question: Did his father’s position on gay rights also evolve over the years?

Of course, I have no idea where Antonin Scalia stood on these matters at the end of his life. Since he penned that dissent, there’s been a sea change in the gay rights arena. Indeed, I have to believe that he too had meaningful interaction with LGBTQ colleagues, relatives or friends.

So let’s be generous and assume he was capable of change. I’d like to think so.

vchen@alm.com

Twitter: @lawcareerist

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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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