Justice Scalia's Clownish Conservative Logic Could Completely Undermine Gay Marriage

There are times when one wonders if the Supreme Court’s bad boy is on a campaign to just publicize his conservative agenda. Seemingly with abandon, Justice Antonin Scalia hides his distaste for most civil rights and government behind the veil of his famous "textualist" interpretation of the Constitution. 

Scalia's official drumbeat is that the Constitution is a static, unchanging document that is defiled when brought into the context of modern society. It's a fairly useless school of thought for anyone who would seek to judge contemporary legal issues against an ambiguous 200-year old charter, which unfortunately happens to be his job. (It’s not unfortunate that a brilliant jurist should speak about legal philosophy, but that we have to live with the consequences.)

To hear him tell it, the Scalian conception of the Constitution is anything but rigid. "My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it." Fair enough, we may say. This is, after all, a democratic system of government we have here, and laws should not be made by judges in an ivory tower. Except Scalia is not asked to make laws; he’s asked whether or not the law is congruent with the Constitution. By the time his opinion matters, the popular voice has been heard.

In fact, a fundamental step in that very democratic process is that he and his colleagues must vet the hopeful statute as able to stand unobtrusively in the American legal canon. In other words, the process that would render his Constitution flexible includes his interpretation of it. To throw up his hands and report the negative results of hitting CTRL+F for the issue in the Constitution is somewhat an abdication of responsibility.

The logic of Scalia's theory suffers from circular reasoning. If existing law does not address a certain issue — and his rigor-mortis Constitution is certainly not going to grow to absorb the question — then there is space in the law where that question can be legislated. So legislation is passed to do just that, and when the life cycle of the law comes to the point where his opinion is required of it in order to continue, he points to the fact that the space was empty in the first place as the main factor founding his analysis of it. For him to discern whether that empty space can be reasonably filled in... he considers an overstep. And thus you have the textualist formula for paralyzing government.

Adhering to it, however, can be tough for a conservative zealot. It's easy when a democratically-passed law, submitted for the Court’s consideration, is congruent with Scalia's bigotry. In his dissent in 2003’s Lawrence vs. Texas, for example, Scalia righteously argued that striking down a legal ban on consensual homosexual sex was a subversion of the democratic process, to him the only legitimate process for ascertaining law in the United States: "What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change."

When the democratic process is at risk of being used for the goal of equality, however, his faith in democracy withers. In 1996’s Romer vs. Evans, Scalia wrote equally passionate support of Colorado’s right to hinder the democratic process available to gays. Of a state constitutional ban on any potential recognition of homosexuals as a protected class, Scalia described it as "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." Through the use of the what? If not the legal process, the only route toward legitimacy that Scalia knows, then what avenue would he have Colorado gays resort to to have their right to exist officially acknowledged? One could almost surmise that the legal welfare of private, adult homosexuals was not a concern of the good Justice.

He has been on something of a publicity campaign to confirm that assumption over the past few years. As the Supreme Court hears cases pertaining to gay marriage this week, Scalia’s openly homophobic convictions are trailing him like a fart. The fact that we can be equally certain of the votes that Justices Ginsburg, Sotomayor, and Thomas will cast are of little import when we consider that the most voluble, and possibly the most visible, member of what is supposed to be that august and impartial court is a raging bigot whose own clownish judicial logic fools pretty much no one.

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Lenny DeFranco

NYC resident, from Chicago, fan of culture, politics, music, lit: the good stuff.

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