Supreme Court Justice Antonin Scalia is notorious for not-so-subtly making legal decisions based on his irrelevant personal and religious beliefs. This week, one LGBT-interest columnist says his twisted understanding of how the law works doesn’t just hurt American citizens — it also makes him look ignorant.
Bridgette P. LaVictoire, of the Vermont-based LGBTQ news site Lez Get Real, says the justice applies the Constitution based on its meaning at the time it was written — a legal principle known as “originalism” — to impose his personal standards of Catholic morality on the country. She writes:
Justice Scalia [spoke] before a gathering of the Utah State Bar Association at Westin Resort in Snowmass Village earlier this month. During his speech, Scalia made his usual argument that he believes “that texts should be read to mean what they were understood to mean when they were adopted.” Which means that he should have voted against declaring corporations people (Citizens United), for striking down DOMA (Windsor), and for striking down the nation’s sodomy laws (Lawrence) since all three violate what the meaning behind the Constitution when it was first adopted.
It’s true. Under his understanding of “natural law,” Scalia feels entitled to apply his own belief system to court decisions because people may have shared his ancient views years ago — yet he claims over and over that judges should not have the power to make “value-laden” decisions that are best left up to the people and their elected lawmakers. Here’s a gem:
Scalia, in his talk, cited a number of cases that had come to the Court including abortion rights, same-sex marriage, the society’s ability to execute someone for a crime. He claimed that judges were unqualified to answer those questions without grasping that he and the judges are not being asked about the morality of the issues, but rather the legality of them. …
Scalia also argued that judges should not be policy makers, but that this should be left to lawmakers and the citizens, saying, “I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”
But Scalia isn’t practicing what he preaches. If he had actually cast his vote based on “natural law” as it was understood by the writers of the Constitution, LaVictoire writes, Scalia’s votes in cases like U.S. v. Windsor would have been completely different:
Under Enlightenment philosophy, ‘natural law’ was interpreted to mean those ‘inalienable rights’ such as life, liberty and the pursuit of happiness/property. This would make Scalia’s job easy. He does not have to interpret the law as per the moral value of what he is ruling upon, but rather look at it in terms of a simple rubric — does this law:
1) Deny someone their life, liberty, ability to pursue happiness or property without due process? If it does, then it violates the Constitution as per the interpretation of the Founders.
2) Deny someone their life, liberty, ability to pursue happiness or property through due process? If it does, then it does not violate the Constitution as per the interpretation of the Founders.
Apparently, Scalia also dramatically misused historical evidence in his recent speech, seemingly comparing the Supreme Court’s rulings on social issues to lawmaking in the days of Nazi Germany:
Scalia opened up his talk with the idea that Nazi Germany, “the most advanced country in the world” at the time, made the mistake of allowing judges to interpret the law in ways that were intended to reflect “the spirit of the age.”
Scalia makes a huge mistake in his interpretation of history at this point. Chancellor Adolf Hitler created the Volksgerichtshof or People’s Court not to interpret the law, but to end run the traditional courts in order to get the interpretation of the law he wanted. They were not the moral arbiters that Scalia claims, but rather a means to enforce the law as the Hitler regime saw fit. Hitler created the People’s Court specifically to enforce the laws as he wanted them to be enforced, not to act as arbiters of what was and was not constitutional.
The Huffington Post columnist Geoffrey R. Stone also addressed Scalia’s adherence to originalism back in April. Here, he unpacks a claim by Scalia that homosexuality was outlawed when the Fourteenth Amendment was adopted, and therefore sexual orientation shouldn’t be considered when the government determines the extent of equal protections laws. Shocker: he’s wrong.
Since the 1970s, the consensus among physicians and other mental health professionals is that homosexuality is a normal variation of human sexual orientation. The prevailing view today is that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, a position that has been officially endorsed by both the American Psychiatric Association and the American Psychological Association.
None of this, of course, was known in 1868. Just as those who enacted the First Amendment could not have anticipated cell phones and email, those who enacted the Fourteenth Amendment could not have anticipated our current medical, scientific and social understanding of sexual orientation.
Scalia’s inconsistent approach to interpreting the Constitution has left him utterly unable to responsibly carry out the duties of his job. Whether he admits it or not, he’s not ruling on whether laws are actually legal under the Constitution; he’s relying on outdated social norms in an attempt to channel his religious beliefs into law. As LaVictoire so boldly concludes: “Scalia is a theocrat who must now step down.”
If only we were so lucky!