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:

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.

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11 Responses

  1. Joe says:

    I find Thomas’ dissenting opinion in Lawrence a bit underwhelming given this:

    “Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.”

  2. Corey Yung says:

    It’s a fair point and one I raise sometimes with my students when we discuss Lawrence. Thomas’ rhetoric is far more palatable to many, but he nonetheless joins Scalia’s dissent.

  3. Paul Horwitz says:

    Corey, can I ask whether you have a distinction in mind between “religious majoritarianism” and simple majoritarianism? Does this mean something like that majoritarian political decisions must be justified by, and/or conducted in terms of, public reason, or by some form of publicly accessible consequentialism?

  4. Corey Yung says:

    Paul, that’s an awkward phrase on my part. I mean it to describe when the religious beliefs of the majority are reflected in the policies adopted by government. I don’t think there is anything inherently different or worse about religious values being reflected in policy versus any other moral framework. I simply meant that Segall and Posner’s claim, that Scalia is privileging religious judgments in defense of anti-gay laws, is a reasonable one.

  5. Paul Horwitz says:

    Thanks for that clarification, Corey. Best wishes and so on.

  6. Shag from Brookline says:

    Perhaps Justice Scalia collaborated with Whelan on the latter’s tweets?

  7. Joe says:

    Yes, Justice Thomas to me seemed to try to have it both ways there, and could have simply noted that he agreed with Scalia’s bottom line regarding constitutional demands without joining the whole opinion. Consider too the first section of Scalia’s dissent in McCreary County v. ACLU of Kentucky, which Rehnquist and Kennedy didn’t join while Thomas silently went along. Scalia is not the only judge who if I was a colleague that I would want to try to distance myself from some aspects of his opinions especially dissents but he is fairly blatant.

    Anyway, Justice Thomas’ comment sounds like the dissenters in Griswold v. Connecticut but not quite the same after you notice that join.

  8. Corey Yung says:

    This comment is from Ed Whelan who is having trouble with CO’s anti-spam system:

    Prof. Yung’s post shows that he doesn’t understand what Posner and Segall are arguing and what I’m contesting. Briefly:

    1. Yung thinks that Posner and Segall are contending that “Scalia is essentially appealing to religious majoritarianism in justifying the denial of civil rights to LGB Americans.” If his vague “essentially appealing …” phrase means something like “opining that the people are entitled to rely on their religious informed moral views in enacting traditional morals legislation and in defining marriage,” then I don’t disagree with him at all that that’s Scalia’s position.

    2. The argument by Posner and Segall that I’m contesting is their claim that a snippet of a recent speech by Scalia can reasonably be read to “suggest[]” that he holds the general position that “the Constitution cannot override the religious beliefs of many American citizens.” That claim, which Yung doesn’t even quote, is absurd. (Does anyone think, say, that Scalia believes that a religious majority could enact laws that bar gays from exercising First Amendment speech rights, or Muslims from building mosques, or anyone from getting just compensation for takings?)

  9. Corey Yung says:

    My response to Whelan’s comment:

    I’m not sure how Scalia would address 1A or 5A Takings Clause issues. I know some scholars have criticized Scalia for being far more protective of Christians in 1A cases, but that is not my area of expertise. But regarding the EP in the 14A, I think Posner & Segall have made a strong case that Scalia has adopted a framework (which I think was problematic in Bowers) wherein “the Constitution cannot override the religious beliefs of many American citizens.” I think you would even agree with that statement with two caveats: 1) rational basis is applied; and 2) religious beliefs are reflected in the legislation reviewed (and not merely asserted by private individuals).

    I think the second caveat isn’t really significant because Segall & Posner are worried about theocratic majoritarianism which includes widespread incorporation of religious beliefs into legislation. So, every case they are worried about would presumably include laws reflecting the religious majority.

    I think the first caveat is the real difference between your view and that of Posner & Segall. I think you can make a good argument that Segall & Posner have overstated their case (which is not the same as misrepresenting Scalia) because Scalia’s position is limited to situations where their is a 14A issue and rational basis is applied. It would be interesting to see Scalia’s reasoning in a 14A case involving sex where a law was based solely on religious morals (and 1A rights were not also implicated). Would he think that religious beliefs expressed through the democratic process overcome heightened scrutiny?

    Regardless, Posner & Segall likely don’t place as much faith in the application of the degrees of scrutiny. They are entirely judge-made and they might contend that Scalia would discard them (or limit their application) if he controlled the Court. And therein lies the worry of theocracy.

  10. Corey Yung says:

    Joe, I think that’s another good example. I’m always curious about the strange decisions on which judges join other opinions and it is unclear what they mean when they join it. We can ask if Thomas was joining Scalia, why even add the little separate dissent? What is he communicating? One of the most interesting examples, in my opinion, is Sotomayor’s decision to join Scalia’s opinion in US v. Jones while, in her concurrence, embracing portions of the Alito concurrence. Why join Scalia at all? Why not join Alito (and write positively about portions of Scalia’s opinion).

  11. Joe says:

    Separate opinions tend to interest me in general.

    The GPS case to me is one where Scalia used a property rationale while leaving open the privacy rationale in cases where it might be the only one available. Alito is more in the privacy camp, which in some cases can be more restrictively than a strict property rationale. The length of the tracking appears to be his concern; Scalia’s opinion is broader. Alito and Breyer at times are less supportive of broader 4A arguments. Ginsburg and Kagan seem the most interesting votes there.

    Sotomayor has the best of both worlds by joining Scalia. See also, FLORIDA v. JARDINES, where she joined Scalia’s property opinion & Kagan’s privacy concurrence.