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“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for August, 2013

Guess What? You’re An Invented Minority!

Jim Burroway

August 20th, 2013

So says U.S Supreme Court Justice Antonin Scalia:

In an apparent reference to the court’s recent decisions on gay marriage and benefits for same-sex couples, Scalia said it is not the function of the courts to create exceptions outside the Constitution unless a majority of people agree with them. “It’s not up to the courts to invent new minorities that get special protections,” Scalia told a packed hotel ballroom in southwestern Montana.

Scalia’s views run in the family. His son, Fr. Paul Scalia, is Board Chair for Courage, the Roman Catholic ex-gay organization, and argues that homosexuals don’t exist.

I’ll tell you when, Justice Scalia

Timothy Kincaid

March 26th, 2013

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.

We — we decide what the law is. I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

Scalia rants as though there is no date, as though this is all arbitrary and subjective and up to some whimsical liberal social ‘living constitution’ interpretation of law. He is mistaken.

There is a date, a specific date, upon which it became unconstitutional under the provisions of the US Constitution to exclude homosexual couples from marriage.

On the day, the very first day, that a same-sex couple decided that they would avail themselves of the equal provisions of their governmental contract and seek the protections afforded by marriage, and on the very first day that this same-sex couple was told that, no, they were excluded – explicitly excluded – from the protections offered by the state because they were an unfavored people, on that specific day, Justice Scolia, the state acted in an unconstitutional manner.

Yes, the Supreme Court of the United States “decides what the law is”. But the wording of our contract – our agreement with the Federal Government that they may govern us and patrol our liberties and, at times, curtail our freedoms when necessary – is not decided by the Supreme Court of the United States. And that wording, that guarantee, allows the Federal Government to serve as our representative government only within certain confines, among which are that all citizens are provided with the same rights.

That provision exists either with or without social recognition. It exists whether or not a Supreme Court “decides” that it is the law.

It is inevitable that some day the Court will recognize – not decide – that gay citizens are equal citizens and that arbitrary animus-based discrimination such as that which Justice Scalia defends is a violation of our national contract. And some day, a Supreme Court will decide that the law is such that discrimination based on sexual orientation is a gross violation of the clear provisions of the US Constitution.

But that will not be the day in which such discrimination becomes unconstitutional. That day has passed.

Duncan Hosie, Scalia’s questioner: new gay hero

Timothy Kincaid

December 12th, 2012

No this is not Ron Howard

The student who questioned Scalia’s extremely offensive legal writing during his Princeton appearance has caught the attention of the politically aware. His student newspaperhas a write up.

In the span of less than a day, Duncan Hosie ’16 — a San Francisco native interested in constitutional law — has attained international recognition for questioning Supreme Court Justice Antonin Scalia about his comparison of laws banning homosexuality to laws banning bestiality and murder.

Hosie seems bright and articulate and likely to have a good long career in the legal profession. (My wacky prediction: the first Republican gay US Senator from the state of California). And he stands with Scalia as notable bookends of a generation that struggled over the extent to which gay citizens could achieve equality in their nation and its regard.

Just in: Scalia finds objecting to homosexuality is like objecting to murder

Timothy Kincaid

December 11th, 2012

Okay, that’s not news. It’s not even all that interesting.

Unless you consider that a Supreme Court justice is so extremely biased against one segment of the US population that he is incapable of viewing them as having rights at all.

Antonin Scalia was at Princeton (he has a new book to push) where he was introduced by anti-gay activist Robert George:

When questioned by Duncan Hosie ’16, who identified as gay, on his dissent in Lawrence v. Texas — which struck down a Texas anti-sodomy law — Scalia stood behind his decision. Hosie questioned Scalia’s comparison between having a moral objection to sodomy and having a moral objection toward things like bestiality or murder. Scalia defended his comparison as a form of argument.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia asked, explaining his dissent. “It’s a reduction to the absurd … I don’t think it’s necessary but I think it’s effective,” Scalia said, adding dryly, “I’m surprised you weren’t persuaded.”

But the thing about “reductio ad absurdum” is that it is but a hairs breadth from a strawman argument, an argument that argues against what is falsely presented as the opponents position.

At no point have supporters of marriage argued that no moral feelings should be considered. Rather, we assert that not all moral feelings are comparable. For example, it is perfectly possible to have moral feelings against murder (which does actual harm to actual people) and to still find that moral feelings against other people’s religions are not an acceptable basis for law.

A better comparison would have been “If we cannot have moral feelings against homosexuality, can we have it against Catholicism?” But being the Pope’s proxy on the Supreme Court, I dare say that Scalia does not see anti-Catholic sentiment in the same light as anti-gay sentiment.

So, if there were any question, we have our answer. Tony will be voting against us on the rights of gay people to marriage. Or the right of gay people to adoption. Or the right of gay people to inheritance tax equality. Or the right of gay people to to eat oatmeal if it were to appear before him.

Because of his moral objections to murder, you see.

(Do you ever get the feeling that his grandchildren will change their names?)

UPDATE: Log Cabin does a good job analyzing the impact of Scalia’s views.

The problem with constitutional originalism

An Opinion

Timothy Kincaid

January 5th, 2011

I am not a constitutional scholar. I’m not even an attorney. But I am a fairly logical person who has great respect for the intents and purposes of the US Constitution and who is troubled by efforts on both the right and the left to read into – or extract out of – the language that protects my status as a citizen.

It is my – perhaps naive – belief that the constitution differs from law in that it sets forth principles, ideals, that apply broadly and which are drafted in language that seeks to be applicable to unanticipated specific instances. It speaks to a people who communicate using computers, travel using airplanes, and associate by means of facebook as easily as it did to those who road their horse to the village pub to debate the issues of the day.

I am, I admit, uncomfortable with Supreme Court rulings that seem to create out of whole-cloth rights, privileges, or entitlements that exist outside of the document. While I treasure a right to privacy, I am perplexed that the innumerated rights to privacy that are included in the Bill of Rights have given birth to a generic right that simply is not written there. I think that the courts have in some instances erred in finding not what is written, but what they wish were written.

And in that concern, I am often accompanied by conservatives who, for example, find that the right to privacy limits their ability to restrict the freedoms of their neighbors. But I think that some conservatives, especially those most revered by the hard-core right, are even more guilty in their distortion of the Constitution. Rather than discover rights that are not clearly articulated, they seek to overlook or dismiss those which are clearly in black and white.

Constitutional Originalism is the name they give to this erasing of right, though naturally they do not articulated it as such. Rather it is phrased as though those seeking original intent are preserving the language of the Constitution. They argue that a written constitution is limited to what was meant by those who drafted and ratified it and interpretation should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be.

But that is neither the application they employ nor the intent of their efforts. Take, for example, this conversation between UC Hasting professor Calvin Massey and Supreme Court Justice Anonin Scalia:

Massey: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Scalia: Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

To understand the context of this appeal to originalism, look at the language of the 14th Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The amendment goes on with four additional clauses which address representative government, but this is the heart of the issue, the language which Scalia and those who share his views wish to remove from the protections granted by the Constitution.

And the language which they seek to wish away, specifically, is “any person.” Scalia argues that “any person” as understood by members of the the 39th Congress in 1868 did not include either women or gay people (or anyone else to whom we could apply it) and so thus these classes of persons are not protected by the amendment.

But to do so, Scalia has to make three broad assumptions:

1. That the Constitution is not a document of guiding principles, but a law text which applies only to the specific intentions designed to address specific issues.

Depending on how literal this is taken, you can run into some rather tricky interpretations. By a strict adherence to the original intent, references to “states” would only apply to the original thirteen, the regulation of commerce among the several states would be limited to goods and services in existence in the 1780′s, and citizens would be white male landholders. But, in a manner similar to scriptural literalism, originalism picks and chooses that which is bound by principle and that which is bound by “intent.”

2. That the drafters of the 14th Amendment were careless.

The term “any person” seems to be rather broad. Scalia would have us believe that the intent of this phrase is “any heterosexual male person” and that the drafters simply assumed that no one would read “any” to be more broad than they intended.

But in the second clause of the 14th Amendment, these same drafters were capable of the much more specific phrase “any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States.” One must either believe that they were forgetful, downright stupid, or that it was not entirely by accident that the phrase “any person” is not termed “any male person.”

3. That the men who wrote and voted for the 14th Amendment could not espouse principles grander than they personally could aspire.

History, especially the founding of our nation, is full of examples of men whose beliefs exceeded their abilities. Washington, for example, was troubled by slavery, yet owned slaves for many years. His slaveholder status is not an indication that he revered the institution, but that he was limited and flawed, unable to live to the standards that his conscience told him were right.

And while Scalia would pretend that the notion of women’s rights was foreign to the thinking of congressmen in 1868, the battle for women’s rights was alive and well at the time. In 1848, Gerrit Smith ran for president as the Liberty Party’s candidate on a suffrage platform. And indeed, it was from among the suffrage leaders that much of the support for African-American rights was championed.

It requires a willful disregard of history to declare that “I don’t think anybody would have thought that equal protection applied to sex discrimination.” That was what Elizabeth Cady Stanton and Frederick Douglass and Susan B. Anthony were fighting for in that very year, one of the principle years of suffrage activism. They rightly saw the battle for equal rights to be the battle for all equal rights.

That suffrage was not achieved for another half century is a sad reflection on the face of humanity’s inability to let go of privilege. But I think it at least likely that in selecting “any person” the Congress was laying out principles to which it could not yet live, but which it knew were right.

As for sexual orientation, the matter is less clear. Few, if any, at the time recognized orientation as such. But surely as important to “what did they intend” would be “what would they have intended.” If those who protected “any person” were aware of the intrinsic and immutable nature of sexual orientation, would they have found that gay persons can and should be deprived of life, liberty, or property, without due process of law? Would they have carved out an exception and stated that gay people should indeed be denied the equal protection of the laws?

Scalia would say that this is immaterial, that they didn’t intend it at the time and the principles they applied in laying down such protections should be ignored. That they addressed the rights of the often despised, uneducated, recently-enslaved negro says nothing to their attitude towards other minorities and the decency that underlies this provision has no bearing on its interpretation and all that matters is that the writers of the language were not specifically thinking at that moment of gay men and women.

To Scalia’s thinking, the broad language of the constitution should be thought not in terms of principle, not in terms of even the words selected, but in terms of what Scalia’s stereotype of the mindset of a mid-eighteenth century congressman might be.

Scalia simply wishes to find in the Constitution that, and only that, which confirms his own biases and sense of entitlement. Originalism is just a tool for finding it there.

Scalia: gays and women not included in “any person”

Timothy Kincaid

September 20th, 2010

Supreme Court Justice Antonin Scalia believes that women and gay people are not protected by the constitution from state mandated and enforced discrimination. (SF Chronicle)

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

Scalia, a proponent of “originalism” believes that it doesn’t matter what the words of the Constitution say or even what a logical and consistent application would yield. Rather, it is what was in the minds of the white men who drafted that wording which matters.

And Scalia believes that when they wrote

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

they clearly did not intend for “any person” to include women or gay persons. So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.

Since the “original intent” is required for Scalia to find that the US Constitution protects women and gay people, perhaps we should provide him with some original intent. Maybe Scalia would find it more convincing if Congress and the States amended the US Constitution to put the words “any person” in bold font.

LA Times’ Oliphant discusses SCOTUS and religion

Timothy Kincaid

April 22nd, 2010

A few weeks ago, I noted that with the retirement of Justice John Paul Stevens, the Supreme Court of the United States would no longer have a Protestant Christian as a member. Now James Oliphant, writing for the LA Times discusses the same.

He reports that many observers dismiss the importance of religious diversity. And he quotes one of the few Justices who discuss the matter

Scalia, one of the few justices who have spoken about the role of Catholicism in their deliberations, has done so largely as a means of reconciling his faith with his votes to uphold death sentences. He has said that any Catholic judge who believes the death penalty is immoral should resign.

But he has emphasized that his faith has had little effect on how he views his role as a judge.

“I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic,” he said in a 2007 speech.

How very odd. I could probably identify dozens in which Scalia’s faith-system dictated his position.