A Scalian Dissent to Scalia’s Dissent

by Brendan Beery

Justice Antonin Scalia is commonly mistaken for an intellectual when in fact he is just a wordsmith. No matter how banal his reasoning, his smug dissents often leave his brethren looking like the fools. But smug is easy, and reasoning is hard. Scalia’s colleagues – at least the serious ones – tend to value comity, so they never get to show how easy it would be to pull a Scalia on Scalia. Indeed, were Scalia’s serious colleagues to marry their superior logic with Scalia’s pithy inanities, the results would be devastating. Since Scalia’s colleagues are too smitten with institutional credulity to try, I thought I might try it for them. Here goes:

I dissent to the dissenters’ dissents in Obergefell v. Hodges. Among the dissents, the most noteworthy sentence is this extravagance penned by Justice Scalia in his first paragraph: “I write separately to call attention to [the Supreme Court’s] threat to American democracy.” (Were I ever to start a “legal opinion” with such overwrought jingo-lingo, I’d jam my head under the nearest coffee table and refuse to come out until the Sixth Great Extinction had finished its work.)

The gravamen of Scalia’s complaint, shared by his three other dissenting brethren, is that federal courts ought not undo the will of the people as expressed through their elected representatives (or ballot initiatives). All four of these justices went to law school – Harvard or Yale, no less – but it seems they all missed Marbury v. Madison Day, whence they might have discovered that the American judiciary, in a manner far less foreboding than Justice Scalia suggests, was designed to be a threat to American democracy.

The framers, whose eighteenth-century understanding of “cultural issues” often causes the four dissenters to pant and salivate, created a federal judiciary wherein every judge was – gasp! – unelected and served – gasp again! – for life. In Marbury, decided in 1803 (as the Constitution’s ink was still drying), the Supreme Court addressed three fundamental questions: 1) Is the Constitution law; 2) If it is law, is it superior to all other law; and 3) Who gets to decide what it means? The Court answered yes, yes, and the judicial branch. The four dissenters proceed as though these matters had not been settled for well over 200 years.

Since the Constitution is law, and since it is addressed almost exclusively to our elected representatives in government, we are left to ask what a judge should do when those representatives shrug off constitutional commands, often without even reading them. The dissenters would apparently have us say, No worries! The Constitution is, after all, just a strongly worded suggestion.

As to the command primarily at issue in Obergefell, it’s not terribly complicated for the uncorrupted mind: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” As states are states, gays are people, laws are laws, and equal means the same, one would think it self-evident that under this clause, state governments must treat gays the same way they treat everyone else – at least barring some reason for unequal treatment. But alas, the dissenters say, the clause does not mean what it says. By person, Justice Scalia has explained in other dissents and opinions, the drafters didn’t mean person; they meant former slave. (As Justice Scalia revels in reminding us, judges are not crystal gazers, so we are to apply what drafters wrote rather than what they meant – unless of course it is Justice Scalia and not some other judge who knows what the drafters meant, in which case what they wrote is irrelevant.)

And anyway, the dissenters tell us, there are legitimate reasons to treat gays unequally – like tradition, for example. The longer we’ve been doing something, this theory goes, the more constitutional it is. This is like saying that the more a tumor spreads, the less malignant it is. The dissenters invite governments to insulate their constitutionally noxious agendas by codifying them; once codified and executed for long enough, who could say that such an agenda is unconstitutional without debasing the integrity of all who conjured and applied it?

But I think we all know the real reason these four justices feel so strongly about gay issues. They need to believe that homosexuality is an abomination, and so they do. Why they need to believe such a thing is better left to shrinks, but believing it as they do, they cannot countenance the equality of gays. This hokus pokus comes from the Book of Leviticus, of course – which also prohibits, among many other things, whoredom with Molech, feeding on creatures that “creepeth,” and cursing your mother or father (under penalty of death). Naturally, the dissenters could not say that this was their reason without smacking their own heads against the Establishment Clause, so they mostly stuck to ad hominem attacks and hissy fits about mummeries, Putsches, hippies, and fortune cookies.

The four dissenters are not serious and, in truth, are not really even lawyers. They are deeply troubled priests who have traded the more effete cloaks of clergydom for black robes less likely to give them away. They are not the enforcers of equality, but its gatekeepers; and if you are different from what they wish they themselves were, their calling is not to welcome you in, but to keep you out.


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