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Antonin Scalia’s Embarrassing Dissent

By on June 27, 2013 | No Comments

I generally admire Justice Antonin Scalia. But, as evidenced by today’s dissent, cultural issues tend to bring out his bitter, vitriolic side:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case… Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?


My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.


I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

Scalia is right to point out that Justice Kennedy is suffering from a serious case of cognitive dissonance. How can Kennedy fail to recognize the logical implications of his vote to throw out the exclusionary federal definition of marriage on equal protection grounds? The path has been prepared for the other shoe — a court-ordered national mandate for marriage equality — to drop later. Why has the Court failed today to follow its own logic to its obvious conclusion?

Scalia reserves his most theatrical outrage, though, for the fact that Kennedy and the liberal majority have accused supporters of DOMA of animus toward gays and lesbians. But he seems to have lost track of what the question before the Supreme Court actually was. When reviewing the constitutionality of a law, justices try to determine the intent of the legislature in passing the law in the first place. The debate over DOMA did not simply arise out of the ether: it was a response to early state moves toward civil unions, and the bill’s supporters in Congress were often eyeballs-deep in contempt toward gays and lesbians — hence the name of the law. The Defense of Marriage Act was meant to “defend” marriage from gays and lesbians. To ignore this basic truth of the case — as Scalia seems to prefer — is simply to rewrite history.

That is why this argument, which seems to have particularly impressed the right-wing, is so hollow:

“…to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution.”

Scalia is playing games with words here, and he’s doing it pretty shamelessly. His analogy makes sense on a superficial level: to defend one variation of something is not to condemn another. That is certainly true as far as it goes, which is why Scalia has largely gotten away with this weak argument. The heart of the problem with his claim is that it confuses two different contexts: systems of law are by their nature exclusive. Nations cannot have competing sets of laws in the same jurisdiction. To defend the Constitution of the United States is certainly not to ‘demean’ other constitutions, but it is to exclude them. This is quite different than same-sex marriages, which can exist alongside traditional heterosexual unions without undermining them in any way. The question before the court was not whether one can oppose same-sex unions in good faith, but whether the government has a rational basis for excluding gay and lesbian couples from the institution of marriage. Using Scalia’s example, we would say that the rational basis for defending our own Constitution is that there cannot be competing sets of laws in the same jurisdiction; it renders the law itself incoherent. What is the rational basis for excluding same-sex couples from the institution of marriage? Is there one?

Of course, this is a question on which the Supreme Court punted. But the fact that the Defense of Marriage Act was struck down on equal protection grounds indicates that the door remains open to a national mandate in the near future. About that much, Scalia is right. I look forward to his next dissent.

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The views expressed here are solely those of the author and do not necessarily reflect the official position of the Republican Reason Caucus.

How I Learned to Stop Worrying and Love the Living Constitution

By on March 29, 2013 | 2 Comments

When I was a college undergraduate, I subscribed to a very rigid legal philosophy not too far removed from the originalist views of Robert Bork. The judiciary, in this viewpoint, does not exist to protect minorities, foster stability, or hand down rulings based on an ethical sense of justice. For instance: I am gay, and I support same-sex marriage. But if I were a judge, I believed, I would have to concede that the Constitution does not justify a national mandate for marriage equality. My personal sense of justice, then, is and should be irrelevant to the rule of law. Rather, justice is an institutional process: if the letter of the law has been carried out, then that is justice, properly understood, in a legal context. If same-sex couples want their marriages recognized by the government, then they will have to work through the legislature — not appeal to judges when they can’t get what they want through the standard channels.

To be sure, I still sympathize with this view. Respect for the letter of the law is vital to a healthy, well-functioning judicial system. But I am no longer so certain that a strictly originalist position is the most prudent approach to the law. Antonin Scalia has declared that he believes in a ‘dead’ Constitution — one that does not change with time. But while the logic and principles of the Constitution are indeed timeless — ‘dead’ — the particulars and circumstances of our lived experiences are always changing. This is why Edmund Burke, that great conservative statesman, declared that ‘change is our means of preservation.’ The way that we apply our deep-seated principles, then, will not be the same in all places or at all times. The law must exist to serve mankind, not the other way around. And the spirit of the law is just as important as the letter of the law.

Scalia asked a characteristic question to Ted Olson in this week’s Supreme Court proceedings:

“We don’t prescribe law for the future,” Scalia said. “We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”


Olson countered that with a question of his own, bringing up two past high-profile cases involving discrimination. “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” Olson asked.


The two went back and forth, with Scalia repeatedly questioning when, specifically, it became unconstitutional to bar gay couples from marrying. Olson argued back, but ended up conceding that there was no specific date.

“Well, how am I supposed to how to decide a case, then, if you can’t give me a date when the Constitution changes?” Scalia said.

The problem with Scalia’s question that he is projecting his premise — that the Constitution is completely “dead” and therefore is not subject to any sort of change over time — onto Olson’s argument. He seems to imagine that a more expansive view of the Constitution’s application would necessitate some sort of magic moment in time in which recognizing same-sex marriage became Constitutionally necessary — as if something, at once, descended from the heavens into the document. But the question of equal protection for same-sex couples is not an esoteric, metaphysical one — it is the question at hand that the Court is facing! Given the contemporary context (the one in which we live, after all) does it make sense, given the logic of the Constitution and of legal precedent from analogous cases, to issue a mandate? This is what a judge should be asking himself. The law is not something ‘out there’ like Platonic forms — it is a system of regulating human behavior. The law exists to serve human needs, and it is the job of a justice to apply it prudently.

Social conservatives fear that without an objective, timeless definition of marriage, the institution will become arbitrary and meaningless, leaving us with no valid reason to deny marriage licenses to, say, polygamous couples, or people who want to marry inanimate objects, or even children. But the reason that we could still deny marriages in those cases is quite simple: because that is not the kind of society that we live in. Those aren’t the choices and values that we honor and respect. It would be imprudent and highly impractical to mandate that we legally recognize those relationships. The reason that social conservatives think that we might have to is because they are trapped in a mad quest for metaphysical objectivity — as Prof. Robert P. George’s recent book against same-sex marriage, lauded by the Christian Right, makes quite clear. But marriage has never had an ‘objective’ definition — not a legal one, let alone a metaphysical one. The definition has varied across the ages. It is changing again, just as it will surely change again in the future.

To be sure, it would be highly preferable for this sort of task to be carried through by the legislature — the superior option for ensuring social and political stability. But there wouldn’t be anything inconsistent with our country’s legal history or with the principles of the Constitution to grant marriage equality through the judiciary, either. It would be a reasonably logical extension, not an upending, of its principles. This is the ‘living Constitution,’ properly understood, at work. And there is nothing unconservative about it.

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The views expressed here are solely those of the author and do not necessarily reflect the official position of the Republican Reason Caucus.

Gov. Christie Must Stand with Gay and Lesbian Youth Against “Gay Conversion Therapy”

By on March 25, 2013 | 1 Comment

New Jersey Democrats think that they have finally found an issue that they can use against Gov. Chris Christie, one of the nation’s most popular executives. The state legislature recently passed a bill that would bar parents from forcing their gay or lesbian children into “gay conversion therapy,” a pseudo-scientific mockery of psychotherapy that attempts to “convert” gays into straights with a mixture of religious brainwashing and talk-therapy that probes into the teen’s psychosexual history, under the premise that homosexuality is not a sexual orientation but rather a sexual dysfunction rooted in a gender-role crisis. Christie won’t commit to signing the bill into law.

The jury is not out on the legitimacy of the practice. While a vulnerable teenager might easily be shamed into repressing his natural desires, there is no way to turn a homosexual into a heterosexual. Every major medical association, including the American Psychological Association, has condemned “conversion therapy” in the strongest terms. Christie has personally condemned the practice, but has cited concerns about state intrusion on parents’ rights.

He should sign the bill. As a Republican who supports a strictly limited role for government, I tend to side with individuals, families, and local communities against centralized power, which too often demands homogeneity and conformity at the expense of liberty. But there are certain situations which demand a one-size-fits-all policy: murder, assault, theft, and fraud are never permissible, for instance, since they are direct, overt acts of aggression. The state also has a duty to help defend those who cannot defend themselves. Government properly reserves the right to intervene against parents who are inflicting abuse upon their children.

If an adult wants to waste his time and money on “gay conversion therapy,” then that is certainly his prerogative. But teenagers lack the legal capacity to object to their parents’ demands. If Gov. Christie can’t decide whether to stand with them against their parents, then he should put himself in the shoes of a gay youth who has to live every day knowing that his parents are ashamed of him and belittle him for his sexual orientation. The state cannot save those kids from the ignorance of their parents, but they can at least protect them from their most egregious excesses. “Gay conversion therapy” is nothing short of psychological abuse when a teenager is subjected to it, and Christie should call it for what it is. He has stated that he is “tired of dealing with the crazies” in the right-wing base. This bill is a perfect opportunity to prove that he means it.

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The views expressed here are solely those of the author and do not necessarily reflect the official position of the Republican Reason Caucus.

The Emerging New Republican Coalition

By on March 22, 2013 | 2 Comments

In a FOX News opinion piece entitled, “Conservativism cannot survive a libertarian takeover,” political strategist Brad Todd accuses the growing army of libertarian-leaning conservatives of trying to dismantle Reagan’s winning coalition of economic conservatives, social conservatives, and war hawks.  He claims that modern conservatives want to sing a “one-note kazoo song” that focuses only on the federal budget and the economy.

This is, of course, a gross misrepresentation.  Modern conservatives care about social issues — we just have different opinions on social issues than the Republicans of four decades ago.  We don’t believe that personal morals — what people do by themselves, without harming anyone else — need to be policed by the government.  Modern conservatives believe in keeping America safe — we just happen to not treat the Pentagon budget as a sacred cow where no waste can be found, nor do we implicitly trust the same federal government we mock for the terrible job they do delivering mail and licensing drivers to fix every economic and diplomatic problem in any foreign country on Earth, nor are we willing to sacrifice every civil liberty on the altar of national security.


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The views expressed here are solely those of the author and do not necessarily reflect the official position of the Republican Reason Caucus.

Why Should “Morality” Mean Opposing Rights of Gays and Women?

By on March 20, 2013 | No Comments

Former Sen. Rick Santorum (who was rejected by Pennsylvania voters 7 years ago) spoke at the Conservative Political Action Conference (“CPAC”) this past week, stating, “For those in our movement who want to abandon our moral underpinnings to win, what does it profit a movement to gain the country and lose its own soul?”

Of course, when Mr. Santorum talks about “moral underpinnings,” he means opposition to legal equality for LGBT Americans, and enforcing a government prohibition on abortion procedures.  When Mr. Santorum talks about “immorality,” he refers to a society that is “anti-clerical, anti-God.”  The twenty percent of Americans who now do not identify with any religion (“anti-clerical”), many of whom do not even believe in the supernatural (“anti-God”), would take issue with being referred to as “immoral”.  These non-religious Americans are caring parents, doctors, teachers, and scientists, working hard to make the world a better place.  They are just as moral as their religious friends and neighbors.

Why do Mr. Santorum and his ilk get the privilege of defining the word “morality” to mean anti-equality, anti-medicine, anti-science, anti-diversity, and anti-freethinking?


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The views expressed here are solely those of the author and do not necessarily reflect the official position of the Republican Reason Caucus.

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