Posner & Segall v. Scalia & Whelan
Many of you have probably already read Judge Posner and Eric Segall’s piece in the New York Times about Justice Scalia’s conception of the role of religion in regards to civil rights, particularly those of LGB Americans. Ed Whelan issued a response to the NYT piece here. I had not planned to blog about the discussion with too many deadlines today and tomorrow. However, my attempts to merely tweet a few thoughts escalated quickly:
Yeah, which I linked to and quoted from in my piece, you numbskull. Do you have an actual point to try to make? https://t.co/DrEgTD30DM
— Ed Whelan (@EdWhelanEPPC) December 3, 2015
Much like his tweet to me, Whelan’s attacks on Posner & Segall’s article are harsh and dismissive. Choice quotes include:
- “… just when I think that [Posner] can’t go any lower, he goes subterranean.”
- “Posner resorts to the cheap debater’s trick of setting up and knocking down a bunch of straw men.”
- “… no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks.”
- “Posner’s observation is a smear and a distraction.”
- “In sum: yet another contemptible performance by Posner.”
Given the things that Whelan wrote, I’m not sure whether Segall should be happy or upset about Whelan’s repeated omission of Segall’s name in describing the co-authored article.
My issue with Whelan’s piece, that I tweeted about, is that I don’t think he fairly represents Segall & Posner’s core argument (which is particularly notable when Whelan is calling them out for not “fairly present[ing] Scalia’s positions). Among Whelan’s several arguments, the one I find most problematic is:
In a recent speech, Scalia stated (according to this account) that “Saying that the Constitution requires [same-sex marriage], which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” Posner somehow extracts from this statement the “suggestion that the Constitution cannot override the religious beliefs of many American citizens,” and charges that Scalia holds a “political ideal [that] verges on majoritarian theocracy.” What nonsense. Like many unscripted remarks, Scalia’s statement is (at least in isolation from its fuller context) not a model of clarity. But his phrase “contrary to the religious beliefs of many of our citizens” is susceptible to either or both of two sensible readings. First, Scalia might be referring to the many “serious questions about religious liberty” that the Chief Justice’s dissent (which Scalia joined) explains that Obergefell creates. Second, he may be objecting to the Obergefell majority’s position that citizens with religious beliefs about marriage are somehow disentitled to support laws that accord with the moral propositions that their beliefs inform. By contrast, there is nothing in Scalia’s long record that remotely supports the notion that he believes that “the Constitution cannot override the religious beliefs of many American citizens.” Posner’s claim to the contrary—which is the centerpiece of his op-ed (which is why it’s titled “Justice Scalia’s Majoritarian Theocracy”)—is scurrilous.
But Whelan does not include all of the evidence that Segall & Posner cite to support their claim. From the original article (and at this point I should note how annoying the NYT website is at preventing cutting and pasting of text; thanks Lexis):
In Lawrence v. Texas… Justice Scalia complained that: ”Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. 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. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.”’
Justice Scalia made these remarks 12 years ago — and predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision…. In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a ”deserving minority,” and added, ”nobody loves them.” Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that ”a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy….
We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that he believes violate the First Amendment and various federalism provisions of the Constitution, as well as affirmative action measures that he thinks are in conflict with the 14th Amendment.
But who knows? Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution, as otherwise he might be thought of as one of those ”unelected lawyers” who so threaten our democracy. Not only an unelected lawyer, but — a patrician. For he said in his Obergefell dissent that ”to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
For a newspaper editorial (with its inherent length limitations), I think Segall and Posner have provided substantial context for to support the argument that Scalia’s remarks were not merely unclear and unscripted statements that are not indicative of his greater views. Had they been writing in another forum, they could have also cited other portions of Scalia’s dissent in Lawrence:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…. What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State….
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity….
The above quotes don’t even include Scalia’s strained argument that the Texas law was, for Equal Protection purposes, neutral because both gays/lesbians and heterosexuals were prohibited from homosexual conduct. Segall and Posner can point to other dissents and his continued positive references to the historically problematic Bowers opinion. Scalia’s continued invocation of examples like “child molesters” to justify morality-based restrictions on gay rights leads many to believe that his statement in his Lawrence dissent that “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means” rings hollow. Contrast Scalia’s dissent in Lawrence with this quote from Justice Thomas’s brief dissent in the same case:
I write separately to note that the law before the Court today “is … uncommonly silly.” If I were a member of the Texas Legislature, I would vote to repeal [criminal sodomy laws]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
I do not mean to say that Segall and Posner have made an ironclad case that Scalia supports some version of majoritarian theocracy (they even acknowledge that they “doubt that Justice Scalia would go that far” and cite contrary evidence). But their contention that Scalia is essentially appealing to religious majoritarianism in justifying the denial of civil rights to LGB Americans is a reasonable one and is based upon far more than one recent statement made by Scalia in a public forum.