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Scalia's talk to antigay group spurs ethics questions

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 sex between gays a crime. A month after the dinner, he sharply dissented from the high court's decision overturning the Texas law.

Some specialists in 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 Supreme 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, 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 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 among the most outspoken opponents 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 condition the justice's appearance 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 -- 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.

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," said Devlin. Gay-advocacy groups and Philadelphia city officials characterize the group as blatantly antigay.

"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 antigay stance.

Supreme Court justices often speak to legal groups, such as bar associations and law school audiences. Some have also 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 legal 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 specialists in 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."

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 Steve Lubet, professor of law at Northwestern University. "Lots of organizations are engaged in litigation -- hospitals, universities, the American Bar Association -- and it's too restrictive to say judges should not speak to those groups."

Devlin said he saw no reason not to invite Scalia.

Two months before the dinner, the Supreme Court heard oral arguments in a case called Lawrence v. 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 compact-disc 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."

Scalia's remarks were brief and 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. 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."

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