WASHINGTON — As the Supreme Court was weighing a landmark gay rights case last year, Justice Antonin Scalia gave a keynote dinner speech in Philadelphia for an advocacy group waging a legal battle against gay rights.
Scalia addressed the $150-a-plate dinner hosted by the Urban Family Council two months after hearing oral arguments in a challenge to a Texas law that made gay sex a crime. A month after the dinner, he sharply dissented from the high court's decision overturning the Texas law.
Some experts on legal ethics said they saw no problem in Scalia's appearance before the group. But others say he should not have accepted the invitation because it calls into question his impartiality on an issue that looms increasingly large on the nation's legal agenda.
Scalia declined to comment on his appearance before the group.
Scalia's activities outside the court in two other instances — both involving hunting trips — have also drawn criticism for suggesting partiality on cases before his court. But the Philadelphia dinner May 20, unlike the other cases, shows him appearing to support partisan advocates on a hotly disputed issue.
The code of conduct for the federal courts broadly warns judges against conduct that "would create in reasonable minds
a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired."
It says a judge may participate in civic and charitable activities that "do not reflect adversely upon the judge's impartiality."
Supreme Court justices are not bound by the judicial code, which applies to all other federal judges. The high court makes its own rules on outside judicial behavior, but cites the code as its main guideline.
The Urban Family Council, which hosted the dinner, was not a party to the Texas case. But it is backing a separate lawsuit that seeks to overturn a Philadelphia city ordinance allowing gay couples who work for the city to register as "life partners" to qualify for pension and health benefits, which is an increasingly common practice.
William Devlin, who founded the council, is lead plaintiff in the lawsuit, which is pending before the Pennsylvania Supreme Court. Both sides say the case of Devlin vs. City of Philadelphia has a good chance of reaching Scalia's court.
Devlin said he phoned the justice at home last year to invite him to speak at the group's dinner, which was being held to raise money to support the lawsuit and other council activities. The dinner also honored the retiring Cardinal Anthony Bevilacqua of Philadelphia, who has said homosexuality is "an aberration, a moral evil" — and is an outspoken opponent of the life-partners ordinance.
The judicial code bars judges from raising money for outside groups. It also says a judge should not "permit the use of the prestige of the judicial office for that purpose."
After Scalia accepted the invitation, Supreme Court staff contacted Devlin to make the justice's appearance conditional on the understanding that the dinner could not make a profit.
To satisfy the court staff, Devlin said he assured them that any money from the dinner — after expenses to rent the banquet room and pay for food and service — would be refunded to guests. But, Devlin said, that turned out to be unnecessary.
According to Devlin, the event made no money. He said he didn't recall how much was collected. If all 125 attendees bought tickets, it would have brought in $18,750.
"It was a wash," he said, adding that the bill for the open bar was higher than expected.
Devlin said the council offered to pay all of Scalia's expenses and to give him an honorarium, but the justice declined. "He wouldn't even let us pay his parking," Devlin said.
The Urban Family Council is a Christian-based group dedicated to "preserving life, the family and marriage," Devlin said. Gay advocacy groups and Philadelphia city officials characterize the group as blatantly anti-gay.
"The Urban Family Council is very clearly not supportive of gay families," said Stacey Sobel, executive director of the Center for Lesbian and Gay Civil Rights in Philadelphia. "It's very clear they have an anti-gay stance.
"And that should have been very obvious to anyone who was invited to speak to them. If it wasn't, then it should be incumbent on members of the judiciary to investigate organizations before they speak to them," Sobel said.
Supreme Court justices often speak to legal groups, such as bar associations and law school audiences. Some also have spoken in recent years to legal groups with an ideological bent, such as the conservative Federalist Society or the liberal American Constitution Society.
Over the years, some justices also have written strongly worded opinions on such contentious issues as abortion, gay rights and the death penalty.
But generally, they avoid any connection with or appearances before partisan or activist groups that fight for those issues in court.
Several experts on legal ethics said Scalia should have turned down the speaking invitation.
"This would raise a concern in the minds of a lot of people. And I would say it is not the right way to act as a judge," said University of Pennsylvania law professor Geoffrey C. Hazard. "He is talking to a group that has a strong view on the kind of issue that will come before the Supreme Court. I think it is preferable for justices to exercise restraint and to back away from groups that are overtly political."
Hofstra University law professor Monroe H. Freedman agreed. "I think he should have passed on this. He can say he went to honor the cardinal, but that is not sufficient. If it is an adversarial organization working on issues in the public eye and before the court, how could he justify going there? What's beginning to emerge here is a sense of hubris — that he is above the rules."
Others defended Scalia's speaking engagement.
"I don't see it as a problem. I don't see any direct connection between the dinner and the litigation," said Northwestern University law professor Steven Lubet. "Lots of organizations are engaged in litigation — hospitals, universities, the American Bar Assn. — and it's too restrictive to say judges should not speak to those groups."
Devlin said he saw no reason not to invite Scalia.
"We just thought: What better way than to have a sitting Supreme Court justice up to speak? It's nice to be able to say you have a friend like Justice Scalia," Devlin said.
Two months before the dinner, the Supreme Court heard oral arguments in a case called Lawrence vs. Texas. The matter began as a dispute over the 1998 arrest of two gay men in Houston who were charged with sodomy.
In remarks from the bench, Scalia said that "moral disapproval of homosexuality" is an American tradition.
At the dinner, according to a recording made available by Devlin, Scalia was introduced as a leading defender of "the virtues and values of life, of family, of marriage" and "a new friend to the Urban Family Council."
Devlin told the dinner guests: "Speaking of people who stand for the truth, one of my heroes — as many of you probably have said the same thing, that you've always admired him from afar — is Justice Antonin Scalia."
Scalia's brief remarks included no mention of gay rights. He described a Mass said by the cardinal in Washington some years earlier. He also praised the Urban Family Council.
"I'm delighted to be here tonight. I came to honor the cardinal, but after being here a bit and having heard so much about this organization, I'm glad to be here to honor the organization as well," he said.
A month after Devlin's dinner, the high court struck down the Texas sodomy law in a victory for gays and lesbians. Scalia issued a blistering dissent, saying the Supreme Court had "signed on to the so-called homosexual agenda" even though "countless" other laws and court rulings have stated homosexual activity is "immoral and unacceptable."
He argued that the ruling would undercut laws against bigamy, prostitution and deviant sex acts. "This effectively decrees the end of all morals legislation," Scalia wrote. He called it a "massive disruption of the current social order."
The Philadelphia dinner was the third instance in which Scalia's outside activities have created what some say is an appearance of partiality on issues before the court.
The Los Angeles Times reported that Scalia flew in January on Air Force Two with Vice President Dick Cheney to go duck hunting in Louisiana, shortly after the high court decided to hear a legal challenge to Cheney's intent to keep information about his energy policy task force secret.
The Times also found that in November 2001, Scalia was a guest speaker at the University of Kansas Law School at a time when the school's dean was spearheading two cases before the court, and that the justice went pheasant hunting with the Kansas governor and the former state Senate president.
Copyright 2004 Los Angeles Times