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Posts for February, 2016

Dead Scalia’s Legacy

Jim Burroway

February 13th, 2016

scalia-new-orleansIf Scalia’s death doesn’t sharpen our attention to what’s really at stake in the 2016 elections, I don’t think anything else will. It’s tempting to think that we’re not likely to see the likes of another Scalia on the top bench. But consider the prospects of a President Trump or a President Cruz or a President Rubio or a President Carson or even a President Kasich entering the White House. I truly believe that all bets will be off, since all of those candidates (except Kasich) have pledged specifically to try to overturn last summer’s Obergefell decision by appointing anti-marriage conservatives to the high court. Scalia was appointed to the bench by Ronald Reagan in 1986 — nearly thirty years ago — so you can see how high the stakes are for naming his replacement.  Cruz, Rubio, and Senate Majority Leader Mitch McConnel have already demanded that any question of Scalia’s replacement wait until after the elections. So it’s looks increasingly likely that the Senate will filibuster pretty much anyone Obama nominates to be Scalia’s replacement.

In the next several days, we’ll have a number of pious politicos tell us what a great Justice he was, and why they want more Justices like him on the bench. And we’re also going to hear a number of politicians and thought leaders tell us what horrible people we are for remembering Scalia for the judicial scourge that he was. But how can we remember him otherwise, particularly when his oft-quoted dissents from four landmark gay rights cases are so memorable?

So in the interest of remembering that great man Antonin Gregory Scalia, here are some choice quotes from those four dissents. First, from his dissent from Romer vs.Evans (1996):

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “`bare . . . desire to harm'” homosexu­als, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion’s heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifi­cally approved by the Congress of the United States and by this Court.

…But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. The Court’s portrayal of Coloradans as a society fallen victim to pointless, hate filled “gay bashing” is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens.

There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable “alternate life style.” The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.

When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains–and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals.

Scalia’s dissent from From Lawrence vs. Texas (2003), which struck down sodomy laws nationwide:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. 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. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, that in some cases such “discrimination” is mandated by federal statute, (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right (see Boy Scouts of America v. Dale, 530 U.S. 640 (2000)).

…Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Scalia’s dissent from US v. Windsor (2013), which declared the Defense of Marriage Act unconstitutional (by now, he’s at least seeing the writing on the wall):

However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex),there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “”It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

…The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” I have heard such “bald, unreasoned disclaimer[s]” before. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” — with an accompanying citation of Lawrence. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects.” It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

…As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare . . . desire to harm'” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

Scalia’s dissent from Obergefell v Hodges (2015), which struck down bans of same-sex marriage nationwide:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of theCourt’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

…This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

…If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Justice Scalia found dead

Timothy Kincaid

February 13th, 2016

Antonin Scalia

The Supreme Court has been a body in political balance with three liberal justices, three conservative justices, and Justice Kennedy who, in the middle, often swung the majority. But there has been concern for some time that a few of the more liberal justices are aging and may soon wish to retire and, depending on the President at that time, this could shift the bench’s direction.

But I don’t think anyone expected this: (San Antonio Express)

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

A federal official who asked not to be named said there was no evidence of foul play and it appeared that Scalia died of natural causes.

Scalia was a constitutional originalist in that he held that the protections in the Constitution should be interpreted by the original teachings of the Roman Catholic Church. Or so it seemed to me.

A man never deterred by compassion or decency, Scalia was quick to denounce those of whom he disapproved in scathing tones. Among such were gays and lesbians who his judicial review never seemed to find in the inclusive language of the Constitution. For Scalia, “all men” came with an asterisk (*except the homosexuals).

He will not be missed by our community.

Admit it. All You Really Want To Do Is Read Scalia’s Dissent.

Jim Burroway

June 26th, 2015

You know you want to. Where else will you find a Supreme Court decision compared to “the mystical aphorisms of a fortune cookie?” So here it is. But before we dive in, let’s look at Scalia’s classic dissent from Lawrence v. Texas, which struck down sodomy laws nation wide exactly twelve years ago today:

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”  Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. 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. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Twelve years ago today, Scalia had no compunction against reveling in the blatant bigotry that propped up those laws. Twelve years later, the entire country has changed, with large majorities now supporting same-sex marriage. Scalia hasn’t moved that far, but even he can now no longer write about gay people as he once did:

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage.

What’s important to Scalia? He continues, with words that will certainly repeated in NOM’s fundraising emails for weeks to come:

It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of theCourt’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Scalia writes that he believes the proper way to change marriage laws was through the ballot box or the legislatures:

(p1): Until the courts put a stop to it, public debate oversame-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

 

(p4, 5): But the Court ends this debate, in an opinion lackingeven a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. …

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Scalia may not write with the open bigotry he employed twelve years ago, but he nevertheless hasn’t lost his ability to write an entertaining blog post. Scalia describes the decision as a “judicial Putsch” and launches into the kind of mockery that he’s become famous for:

(p7):  They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every personalive at the time of ratification, and almost everyone elsein the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power toremove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies,stands against the Constitution.

The opinion is couched in a style that is as pretentiousas its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 

His sneering even extended to footnote 22:

22If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to allwithin its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of theUnited States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Scalia ends:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the”least dangerous” of the federal branches because it has”neither Force nor Will, but merely judgment; and mustultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer tobeing reminded of our impotence.

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.