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Nobody Puts Scalia in a Corner

March’s SCOTUS oral arguments in Hollingsworth v. Perry and United States v. Windsor unsurprisingly became a focal point for my constitutional law course at the University of Arizona this past semester. In classrooms–especially at an introductory level–law is mainly a retrospective discipline. Settled doctrine is easier to approach. But the hearings on marriage equality made for an irresistible teaching moment. Only a few similarly momentous social issues have ever reached the Court, let alone in my or my students’ lifetimes.

We payed closest attention to justiciability–in other words, whether the Court would allow itself to directly address the rights of same-sex couples. Both Perry and Windsor bear heavily on the evolving interpretation of Article III’s “case or controversy” clause, under which federal judges may only exercise power in order to resolve genuine disputes between adverse parties. So heavily, in fact, that the two cases would likely stand out–at least among lawyers and scholars–irrespective of their impacts on the family lives of millions of Americans. In particular, I’m expecting discussion to grow out of Windsor‘s delineation between mandatory and prudential justiciability requirements, as well as Perry‘s treatment of federal standing arguments based in state law.

Even so, the social meaning of Perry and Windsor is still the bigger story. And nestled within that story is the bizarre, ignoble meltdown of Justice Antonin Scalia. His dissent in Windsor is a judicial landmark of the worst kind: a flipping-over of the Scrabble board that’s laden with fear of irrelevance and hints of a guilty conscience. I’m not the only one to notice. Lawrence Tribe at Harvard picked up on “the extraordinary character of this particularly vitriolic and internally inconsistent dissent” in which “Justice Scalia . . . couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms.”

Perhaps Scalia lashed out because he seems to have taken the defeat so personally, maybe sensing that he had–through his earlier intolerant dissent in Lawrence v. Texas–boxed himself into a corner in effigy of outdated social mores. It doesn’t take a law degree to see the point. Scalia’s outlandish, I-hate-you-all-I’m-going-home prose suffices to betray his feelings:

  • “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case” (italics original).
  • “I find it wryly amusing that the majority seeks . . . .”
  • “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.”
  • “I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them” (italics original).
  • “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
  • “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.”
  • “In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.”

Scalia moreover doubled down on his dissent in Lawrence. That 2003 case finally struck down the notion that states may forbid homosexual couples from becoming physically intimate. To Scalia, such intimacy is more properly called sodomy, a word he repeated more than thirty times in his Lawrence dissent. In recognizing equal privacy rights, Scalia accused the majority of having “largely signed on to the so-called homosexual agenda” and of having “taken sides in the culture war”.

Scalia’s invective is noteworthy if not requited. The majorities in Lawrence and Windsor didn’t obsess themselves with making moral accusations or casting villains. Instead, they quietly advanced an ongoing process of investigation and realization that first started with the Constitution’s drafters. Privacy and equality are not–to repurpose Scalia’s fraught choice of words–part of a black-and-white story. The truth is more complicated. The Constitution’s central purpose has never been to enshrine tradition, but rather to foster a social and institutional context in which a healthy democracy can thrive.

In this light, the core questions aren’t about what we’ve always done, but about what we need to do to fulfill the Constitution’s underlying promise of a just and self-governing society. Privacy and equality have always been essential components of that promise, but historical contexts evolve. Understandings of human nature evolve. So, too, can individual jurists.

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