The troubled legacy of Scalia’s philosophy of constitutional “originalism”.
As we know, an oxymoron is a linking of words that have contradictory or different meanings, like, for example, “cruel kindness” or “jumbo shrimp.” I have long believed that when it comes to protecting the rights of minoritized groups in the United States, we can include “Justice Scalia” on the list of oxymorons since Scalia promoted anything but justice in his opposition to the Voting Rights Act and affirmative action, women’s reproductive freedoms, and in particular, the rights and freedoms of lesbian, gay, bisexual, and trans* people.
In Romer v. Evans, the Supreme Court in a 6 to 3 decision ruled in 1996 that a Colorado state constitutional amendment unconstitutional when it prevented protected status based on homosexual or bisexual identity because the law contradicted the Fourteenth Amendment’s “Equal Protection Clause.” Writing for the majority, Anthony Kennedy stated that the Colorado amendment lacked “a rational relationship to legitimate state interests,” and that “[a] state cannot so deem a class of persons a stranger to its laws….”
Scalia dissented by virtually equating same-sex sexuality with murder, multiple spousal unions, and animal abuse:
“Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct…”
Scalia believed same-sex couples equivalent to nothing more than roommates:
“[Colorado’s ban] prohibits special treatment of homosexuals, and nothing more. [I]t would prevent the State or any municipality from making death benefit payments to the ‘life partner’ of a homosexual when it does not make such payments to the long time roommate of a nonhomosexual employee.”
Scalia joined with the majority 5 to 4 in 2000 to rule it constitutional for the Boy Scouts of America, which it deemed as a “private organization,” to exclude a person, in this instance James Dale, from membership when “the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.” Since the Boy Scouts of America opposes homosexuality as a feature of its “expressive message,” and since James Dale, an adult leader, “came out” publicly as gay, the organization stands on constitutional groups for his dismissal.
In Lawrence v. Texas, the Supreme Court in 2003 finally ruled “unconstitutional” so-called “anti-sodomy” laws, which had criminalized primarily same-sex sexuality. Police arrested the plaintiffs in the case, John Geddes Lawrence & Tyron Garner, whom they supposedly witnessed engaging in sexual activity. The landmark ruling struck down the law not only in Texas, but in the remaining 13 states with similar statutes, and overturned the Court’s 1986 Bowers v. Hardwick decision, which upheld Georgia’s restrictive anti-sodomy statute.
Writing for the majority in Lawrence v. Texas 5 to 4 decision, Anthony Kennedy stated:
“The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Antonin Scalia, however, did not agree, and he voted to maintain the discriminatory law. During oral arguments in the case, he fabricated a false analogy to same-sex sexuality, which he posed to the attorney for the plaintiffs:
“[S]uppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws. Does that make flagpole sitting a fundamental right?”
In his dissenting written opinion, Scalia argued that public attitudes against same-sex sexuality alone is enough to maintain its criminalization and, thereby, circumscribe individual rights and liberties. He asserted that the Court’s majority “had signed on to the so-called ‘gay agenda’” even though:
“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.”
Scalia made the scurrilous argument that the Texas law did not target homosexuals unfairly since heterosexuals were subject to the law. “Men and women, heterosexuals and homosexuals, are all subject to [Texas’] prohibition of deviate sexual intercourse with someone of the same sex.”
In other words, heterosexuals were also at risk for arrest if they violated the law by engaging in sex with someone of their same sex. He emphasized that homosexuals could still legally have sex with some of another sex, so, therefore, Texas was not violating the Fourteenth Amendment’s “Equal Protection Clause” as the plaintiffs claimed.
In this 2013 Supreme Court case, the majority in its 5 to 4 decision ruled it unconstitutional to restrict federal definitions of “marriage” and “spouse” to refer only to heterosexual unions as classified in Section 3 of theDefense of Marriage Act (DOMA). Writing again for the majority, Anthony Kennedy stated:
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment [Due Process Clause].”
Scalia again dissented, this time by calling for increased rights for the individual states:
“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
He then warned of a slippery slope to legalized marriage for same-sex couples:
“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.”
In 2015, the Supreme Court, in a 5 to 4 vote, followed a trend began back in 2004 in the state of Massachusetts by extending marriage equality to same-sex couples. Writing in his eloquent majority opinion, Anthony Kennedy asserted:
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than they once were….Their [same-sex couples’] hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Scalia, in his dissent, seemed resigned to the reality of marriage equality following his dire prediction of its coming following the United States v. Windsor decision. Scalia focused his vitriol on the Court itself, and by so doing, joined with other conservatives who condemn judges for their so-called “judicial activism”:
“The substance of today’s decree is not of immense personal importance to me…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 the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”
Farewell Mr. Antonin Scalia
To be clear, I truly respected Mr. Scalia’s soaring intellect, his larger-than-life personality, his passion for engaging and challenging others and himself to think in different ways, outside of the box. His bright flame for learning became extinguished only with his passing.
What I certainly will not miss was his relentless assault on the rights of LGBT people and other marginalized people, which he justified and rationalized under the philosophy of “originalism”: the concept that we must view and interpret the U.S. Constitution as fixed within the time in which it was enacted. We must follow the original meaning of the text according to what “reasonable persons” living at the time had meant. If a topic or issue is not specifically touched upon in the original text, then let federal legislators and/or the individual states rule on it, which in the parlance of doublespeak can be understood as “let the people and let the states discriminate.”
Well, if we had followed this interpretation since the drafters wrote and passed our Constitution, only white male landowners would have the vote and rights to full citizen status, white people would still have legal rights to enslave black people, most people, except the offspring of the wealthy would have access to education, and LGBT would have absolutely no rights since “We the People” was so circumscribed and limited in scope.
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