Scalia: the unlikely hero of gay rights

February 15, 2014 8:28 AM

Happy Valentine's day from Justice Scalia: (video) how his dissent in DOMA case US v. Windsor (PDF here) helped lead to recent rulings against state gay marriage bans.
posted by shivohum (29 comments total)

Talking Points Memo had a post yesterday calling Scalia a "gay rights warrior." I kind of loved that. In all honesty, he's a smart guy. He can see the march of history.
posted by roomthreeseventeen at 8:44 AM on February 15, 2014 [2 favorites]

Scalia may be intelligent but he's a politically motivated demagogue with little judicial integrity. He can see the march of history and is stridently marching against it.

As the fine video linked here states, all that Scalia has contributed to gay rights is being a target for state courts to mock him and his hateful dissenting opinion. Scalia angrily wrote a sort of reductio-ad-absurdum, that the majority decision might allow the horror of gay rights in individual states. And the states are saying "lol, you're right!" in their decisions. But those decisions are coming on the actual merits of equality, they're just taking a swipe and mocking Scalia by quoting his argument.
posted by Nelson at 8:56 AM on February 15, 2014 [24 favorites]

In all honesty, he's a smart guy.

Scalia certainly has the brainpower to qualify to be on the Supreme Court, and few can write a legal polemic like he does. But I also think his reputation for smartness is overrated. He thinks his positions are unassailable, but that's only because anybody who could assail those positions has been cowed into submission by his bullying. If Scalia were arguing cases instead of sitting on the bench and somebody had the authority to challenge him, he wouldn't seem as smart.
posted by jonp72 at 9:00 AM on February 15, 2014 [15 favorites]

…that the majority decision might allow the horror of gay rights in individual states. And the states are saying "lol, you're right!" in their decisions. But those decisions are coming on the actual merits of equality, they're just taking a swipe and mocking Scalia by quoting his argument.

I don't think that would be a correct interpretation of what Scalia wrote, at all; quite the opposite I can see that he was concerned that it would take away states' freedoms on a technical but essential (as he believes it to be) level. I would also question any presumed common-sense notion of "actual merits" of equality, and I don't know how well that even reflects the views of the other justices. And I can make both of these points, as a gay person myself. My feeling on this is just that it's one thing to try and understand the underlying issues better, it's another thing to try to mock one's opponent like that in the video.
posted by polymodus at 9:08 AM on February 15, 2014 [2 favorites]

I don't think Chris Hayes was mocking Scalia. He was ironically pointing out that as far back as Lawrence, actually (he says Windsor, but it was actually a decade ago), Scalia accurately predicted the direction of gay rights in the United States.
posted by roomthreeseventeen at 9:10 AM on February 15, 2014 [3 favorites]

My favorite Scalia-theory is that he's a crypto-progressive, laying out such obviously wrong positions that his take on the Constitution can gain adherents and then be completely trounced by the exoteric progressives. It's a one-two punch, and the real ideologues are John Roberts-types who narrow victories for progressive causes and then turn conservative wins into blowouts, i.e. Citizens United.

Of course he's damned smart, but I think this is actually a case of just losing a legal battle slowly, and having your opponents run it in.
posted by anotherpanacea at 9:11 AM on February 15, 2014 [2 favorites]

The one thing I took away from my constitutional law classes was that getting onto the Supreme Court basically guarantees that somebody will laud you as a genius, even when you're putting forth opinions that are baldly racist, political, whatever, and not actually based on rational judgment. I always found it ironic, Scalia praising Taney in Planned Parenthood v. Casey, because I just think... no, you cannot be the guy who wrote the Dred Scott opinion and also be an outstanding jurist. You can't. You can maybe be that guy and be less obviously awful for the rest of your career, but you are still the guy who wrote Dred Scott. You have to be accountable for these things, because if your judgment could be that clouded once, it wasn't the only time, it was just the time people noticed.
posted by Sequence at 9:16 AM on February 15, 2014 [12 favorites]

My mom had Scalia as a professor in law school. There was a ban on calling Scalia stupid when I was growing up. You were allowed to say just about anything else about him, but you would absolutely get told off for saying he was an idiot.

I think my mom may have argued with him about whether written constitutions made sense. Not being from a country with a written constitution, she was rather baffled by the whole thing.
posted by hoyland at 9:22 AM on February 15, 2014

Scalia angrily wrote a sort of reductio-ad-absurdum

He correctly noted, going back to Romer, that the decisions would ultimately result in a right to gay marriage.

My recollection is that a bunch of people at the time dishonestly accused him of hysterically pushing slippery slopes, but he was spot on.
posted by jpe at 9:46 AM on February 15, 2014 [2 favorites]

JPD linked yesterday to a Slate piece that makes the same argument: The Kentucky Gay Marriage Decision Is Another Hilarious Swipe at Scalia.

I don't see that in the Kentucky decision itself. It's not a swipe at Scalia; it's just an application of precedent to a similar situation, in a way Scalia (and everyone else) predicted would happen. I could have written the same model language Scalia did, and ended up just as close to the Kentucky decision as he was.

But he invites this personality-based narrative -- his Windsor dissent is written like an op-ed. Here's the conclusion:

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. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

I dissent.

The folksy platitudes, the false equivalence, the concern trolling -- it's fascinating to see this style of rhetoric in a court opinion. And it means that there's a personal sense of satisfaction in watching him lose, just like there would be in watching a TV commentator or newspaper columnist grumpily realize that they can't hold back history.

The other fascinating bit is when he writes things that are true, but apparently believing that he's being sarcastic. It really lets you see the world through his lens. Here's the part referred to in the articles, where he drafts hypothetical court opinions:

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. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion .... [examples here] Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place.

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.

His point here is that the majority is being dishonest -- it tries to present its decision as based on federalism, when it is really based on defense of human rights, and so will apply equally to the states. And in grounding its decision in human rights, it cruelly wounds those who support discriminatory laws, and distorts the proper course our society would take without the defense. This passage is dripping with the injured pride and bafflement of those falsely accused, in a world that has turned upside down.

Underneath all that, he doesn't seem aware that his sarcasm comes across as simple truth. DOMA is motivated by bare desire to harm couples in same-sex marriages. It is horrific that Congress irrationally and hatefully robbed same-sex couples of the personhood and dignity which state legislatures recognized in them. Other state legislatures’ irrational and hateful failure to acknowledge that personhood and dignity is appalling. There is no legitimate purpose served by state laws restricting marriage to its traditional definition, as courts have found again and again when they look for one. Those laws (especially the recent ones) have the purpose and effect to disparage and to injure the personhood and dignity of same-sex couples. And courts are influencing the societal debate.

The simultaneous awareness and lack of awareness Scalia shows here is really striking.
posted by jhc at 10:08 AM on February 15, 2014 [24 favorites]

Antonin the Jurist has a posse.
posted by peeedro at 10:11 AM on February 15, 2014 [1 favorite]

His point here is that the majority is being dishonest -- it tries to present its decision as based on federalism

Nah, their dishonesty stems from the protest that elimination of morality as a legitimate interest won't have impact beyond the instant case.
posted by jpe at 10:29 AM on February 15, 2014

... their dishonesty stems from the protest that elimination of morality as a legitimate interest won't have impact...

How exactly has "morality" been "eliminated" as a "legitimate interest"? I tend to see morality in the public sphere as having a lot to do with things like respecting human dignity and equal protection under the law. What moral precepts here do you feel are being lost? Please, I'd like to know.
posted by [expletive deleted] at 12:17 PM on February 15, 2014 [3 favorites]

If this becomes far reaching enough, then he could form a new expression to replace "Only Nixon could go to China".
posted by AlonzoMosleyFBI at 12:25 PM on February 15, 2014

in defense of scalia, he's right some of the time. florida v. jardines, 5-4, the fourth amendment counts for more than a drug dog's nose at the door of your home. kelo v. city of new london, where he unfortunately rallied only three other votes for the proposition that a citizen's property can't be eminent domained for corporate benefit.

a bad baseball team will still win about 62 games in a 162-game season, and justice scalia will be right about 62 times in a 162-case season. i like him more than roberts and alito.
posted by bruce at 12:46 PM on February 15, 2014 [1 favorite]

quite the opposite I can see that he was concerned that it would take away states' freedoms on a technical but essential (as he believes it to be) level

Nah. He doesn't give a shit about states' rights in any principled way. He doesn't think that states have any right to establish legal medical marijuana, for example. He only thinks that states have the right to do the notionally-conservative things he likes, like oppress gays and blacks.

you would absolutely get told off for saying he was an idiot

He's not an idiot, just a bad person, with the nontrivial exception that he mostly takes rights against police seriously.
posted by ROU_Xenophobe at 12:55 PM on February 15, 2014 [8 favorites]

What moral precepts here do you feel are being lost? Please, I'd like to know.

"Traditional" morality, obviously, but I think jpe was just clarifying Scalia's point.
posted by spaltavian at 1:04 PM on February 15, 2014

Funny, I thought the traditional morality of the United States was things like "Life, Liberty, and the Pursuit of Happiness" and "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty".

Presumably when Scalia is wringing his hands about the elimination of morality, it's because he doesn't like queers and butt sex makes him nervous. From his tasteless flagpole sitting joke to his defense of people who think homosexuality is "a lifestyle that they believe to be immoral and destructive", to his comparing consensual gay sex to murder, he has made his dislike for people like me clear.
posted by Nelson at 1:28 PM on February 15, 2014 [3 favorites]

I wish I had read the comments instead of watching the video.
posted by grouse at 1:30 PM on February 15, 2014

jpe: elimination of morality as a legitimate interest won't have impact...

[expletive deleted]: How exactly has "morality" been "eliminated" as a "legitimate interest"?

jpe is referring to a legal question -- probably one of the fundamental legal questions dividing the Supreme Court this generation. The question is whether, legally speaking, there is a "rational basis" for banning something if a majority of the population believes that it is immoral, but it causes no demonstrable harm.

Scalia's dissent in Lawrence v. Texas (where, hilariously, he accuses the majority of having "largely signed on to the so-called homosexual agenda," like some sort of Hunter S. Thompson villain at a police convention) lays out the battle lines pretty clearly:

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

The back story here is pretty neat. It's a confrontation that's built into the 14th Amendment -- and since we've had that one for almost 150 years, it's interesting that we're just deciding this (or changing our minds on it) now.

The 14th Amendment says that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." It was ratified in 1868 as a response to the Civil War, and it was meant to be enforced. So unlike "all men are created equal," judges actually have to figure out what the hell "equal protection of the laws" is supposed to mean.

The problem is that virtually every law treats people unequally. The NEA gives money to some people and not others. People who own property pay taxes that other people don't. People who rob banks get longer jail sentences than people who jaywalk. Barack Obama gets secret service protection and Mitt Romney doesn't, just because Barack Obama won more votes in an election. Is that equal protection of the laws?

To solve this problem, the Court has gradually established a sort of sliding scale of judicial review, influenced by the problems that the 14th Amendment was intended to address in the first place. So a law that treats a "discrete and insular minority" differently from the majority will be subject to "strict scrutiny," in which the actual reasons for the law will be examined to make sure they're "narrowly tailored" to a "compelling" interest. If you want to give NEA money to white people and not black people, you're going to need a ridiculously good reason.

On the other end of the scale is rational basis scrutiny. If there's nothing particularly suspicious about the two kinds of people we're discriminating between, like bank robbers and non-bank-robbers, then the government just has to identify some "legitimate" interest that the law is "rationally related" to. It doesn't even have to be the actual reason the law was passed -- the Attorney General will just make up whatever they can think of, and that's fine.

And then between those extremes, we've filled in all kinds of waypoints. Gender-based discrimination ended up with its own special "intermediate" scrutiny, because the Court thought the Equal Rights Amendment was going to pass and then it didn't. Affirmative action gets strict scrutiny, but maybe not quite as strict depending who you ask. Discrimination against the mentally retarded has received something called "rational basis with bite," by which we mean the Court claimed to apply rational basis scrutiny but really applied a tougher standard, because it wasn't a huge fan of discriminating against the mentally retarded but didn't want to set any precedents as to why.

Whew! OK, so that sets up the problem: at the low end of the scale, is it a rational basis to preserve a law if, well, a majority of people just think it's a good idea? If most people think something is immoral, but it doesn't cause any harm, can the state ban it? Suppose 90% of us believe passionately and to the depths of our soul that it is terrible and wrong to eat pizza on a Tuesday, or to even subject your neighbors to maybe seeing a pizza delivery guy on a Tuesday, so our state passes a constitutional amendment to ban the practice. Then some of our pizza-loving neighbors bring a lawsuit claiming that they have been denied equal protection of the laws: there is no rational basis for treating their Tuesday meal choices differently than anyone else's, or for allowing different takeout options on a Tuesday and a Wednesday, or however you want to slice it. (Not only do most laws discriminate, but they mostly discriminate in lots of different ways at once.)

Should the Court uphold the law? That depends whether you think a passionately held moral belief about the behavior of strangers is a rational reason for the government to ban something. Scalia says, that's a ridiculous question -- of course it is. It always has been. But he's losing that fight, and I think we'll be a better and freer society for it.

So going back to what jpe said: Nah, their dishonesty stems from the protest that elimination of morality as a legitimate interest won't have impact beyond the instant case. There's some merit to this kind of accusation, that Kennedy's line of cases is deliberately hiding the ball as far as how exactly he's changing the law. After I went through all that trouble of describing the sliding scale of judicial scrutiny for you, the crazy thing is that you can read Lawrence front to back and have no clear idea what standard of review Kennedy applied, or what theory it was grounded in. Kennedy, as the swing vote, gets to do this the way he wants, and for whatever reason he wants to do it so no one quite knows how he's doing it.

On the other hand, it might not make sense to accuse Kennedy of hiding the ball because he's nefariously trying to push the homosexual agenda. He's the swing vote, after all -- it's just as likely that he's trying to limit the effect of these precedents in areas other than same-sex rights.

(Side note: setting homophobia aside entirely, this is exactly the kind of scenario Scalia fears -- where the 14th Amendment changes its meaning after 150 years, giving unelected judges the power to strike down laws they wouldn't have struck down before, simply because the unelected judges themselves now say the 14th Amendment means something different. He's not wrong to find that troubling -- it is troubling. He's probably wrong to think it can be avoided, though. The view from the liberal side of this issue is that Scalia's own decisions are no more defensible, in terms of drawing on some higher source of truth, than the rest -- he's just using a fig leaf of originalism to claim objectivity for his subjective decisions. Ultimately it's always going to be a group of unelected judges doing the best they can with the head and the guts they have, even if some of them cite to dictionaries from the 1700s to explain their decisions.)
posted by jhc at 4:26 PM on February 15, 2014 [19 favorites]

Though it often is, I'm not sure how accurate it is to say that "morality" is what's being eliminated as a justification for the laws here. Laws that treat bank robbers differently from non-bank-robbers also rest on a moral judgment about theft, for instance.

One possible hypothesis I've seen about what's actually happening is that only discrimination based on actual "harms" (and/or "benefits") is now permitted. Yet this isn't really a persuasive interpretation either, since the question of what constitutes a harm or benefit again goes back to morality. Someone may consider it a harm for their white children to have to associate with black children, yet that isn't considered a morally legitimate harm.

I think a better read is that certain bases for morality are now deemed insufficient to justify differential treatment: mere disgust, for example, or perhaps mere tradition. In these cases, some other, more widely accepted basis for the morality of the law must now be shown.
posted by shivohum at 4:47 PM on February 15, 2014 [3 favorites]

Scalia may be intelligent...

There's something about that statement that is resistant to analysis. He's shown tool-use, but adaptation is debatable.
posted by Smedleyman at 7:12 PM on February 15, 2014

Scalia angrily wrote a sort of reductio-ad-absurdum

He correctly noted, going back to Romer, that the decisions would ultimately result in a right to gay marriage.

In his dissent in Lawrence v. Kansas, Scalia wrote a reducitio-ad-absurdum that that case would lead to the legalization of not just gay marriage, but to adult incest, prostitution, bigamy, and bestiality.

His batting average isn't so great.
posted by onlyconnect at 9:12 PM on February 15, 2014 [3 favorites]

Juristfilter: Your favorite tyranny of majority sucks.
posted by vozworth at 9:13 PM on February 15, 2014 [1 favorite]

onlyconnect: well, Canada's Supreme court pretty much legalized prostitution (after that ruling), and there have been successful legal attack on bigamy as well (is adult incest generally illegal?). That being said, I don't think those developments had anything to do with that particular decision.

Scalia does see the writing on the wall in regards to the government regulating consenting behavior between adults in their bedroom.
posted by el io at 9:42 PM on February 15, 2014

The real frustration with Scalia is that he's one of those people who is smart enough to find ways to rationalize ignoring evidence contrary to his preestablished beliefs.
posted by DoctorFedora at 1:21 AM on February 16, 2014

A friend's been predicting this for at least a couple of years. Most of our mutual friends thought he was wanking.

This does remind of Kyllo, though the irony cuts a slightly different way. Kyllo was originally hailed as a triumph for civil liberties, but it seemed clear to me that it was actually a roadmap for how to erase them. The difference is that I think Scalia would have no issue at all with the technological erosion of civil liberties, whereas he obviously thinks gay marriage means the end of western civ.
posted by lodurr at 7:41 AM on February 16, 2014

> "... is adult incest generally illegal?"

Yes, and it is a depressingly unpopular cause for those of us who think it should be legal.
posted by kyrademon at 8:59 AM on February 16, 2014

My personal analysis of Scalia -- just a dog on the Internet, of course -- is that he's both smart and bigoted, in the sense of being wed to and irrationally attached to tradition which is itself bigoted, and this tension is what makes him so interesting. Many people dislike admitting that those two qualities can coexist in a person at the same time, preferring to believe that intelligence must necessarily imply enlightenment on social issues, but in reality I think that is demonstrably untrue.

The most interesting part is that he seems intelligent enough to realize that the direction of history (as expressed in both the judiciary and legislature) is towards gay marriage and acceptance of homosexuality generally, but at the same time he can't allow himself to be in favor of it, for whatever reasons. Thus his analyses are in the technical senses correct, but subjectively (that gay marriage is a bad thing, and/or will bring about the decline of western civilization) hilariously wrong.

My guess is that were jurists not unlike him in the pre-Civil War era, who realized on one hand that slavery was untenable and that all signs pointed to its demise as a social system, but were simultaneously unable to support its immediate disestablishment as a matter of policy. They may have created all sorts of rationalizations for the latter inaction, but that doesn't mean they didn't realize the former inevitability.

It is unfortunate that what appears to be such a formidable intellect (and I have known several people who have known or met him personally and everyone seems to agree that he's pretty damn sharp) is wedded to such a basket of retrograde social beliefs. I think that were it not for his apparent inability to get away from his obvious discomfort with homosexuality in particular, he could probably manage to achieve a legacy on par with Justice Black. Who may have been disagreeable from time to time from a modern political perspective, but at least seemed to have a consistent judicial philosophy and let that carry him where it would go. Scalia, unfortunately, has at several times -- and most notably in Lawrence v. Texas -- seemed to allow personal biases or discomforts to override what would appear to be the straightforward application of his judicial philosophy as demonstrated elsewhere, and I think that will undoubtedly tarnish his legacy as a jurist.
posted by Kadin2048 at 3:17 PM on February 16, 2014 [3 favorites]