Supreme Court reporters will never lack for good copy as long as Antonin Scalia continues serving as a justice. In an otherwise slow news month at 1 First Street, Scalia delivered two zingers for the Supreme Court press corps. In separate campus appearances a week apart, Scalia compared homosexuals to child molesters and earlier invited defiance of Supreme Court decisions by anyone who disagrees with a specific ruling.
Both comments came against the backdrop of the court’s ruling in June to guarantee marriage equality for same-sex couples nationwide. Scalia vigorously dissented from the decision, just as he had done in the court’s three previous gay rights rulings over the past two decades. With the first comment, Scalia implicitly endorsed the refusal of some public officials to recognize same-sex marriages. And with the second he reiterated his view that the court had overstepped by deciding an issue that should have been left to elected legislators.
Scalia made the remarks in campus appearances the first before Princeton University’s Union League [Nov. 11] and the second before a general student audience at Georgetown Law School [Nov. 16]. Both events were unrecorded, so my views are based on accounts published in news media, print and on-line.
At Princeton, Scalia’s interlocutor was Robert George, a professor of jurisprudence at the university and a leading academic opponent of marriage rights for same-sex couples. George published an account of Scalia’s remarks on his Facebook page. He paraphrased the justice as saying that public officials have no general constitutional obligation to treat as binding a Supreme Court decision that lacks a warrant in the text or original understanding of the Constitution.
George said that Scalia specifically mentioned the same-sex marriage decision, Obergefell v. Hodges, and the line of Supreme Court decisions keeping church and state separate. Seemingly, Scalia did not specifically mention Kim Davis, the county clerk in Kentucky who defied the marriage decision by refusing to issue licenses for same-sex couples. But Scalia surely is aware of Davis’s refusal: she was jailed for a week for contempt of a lower federal court order.
Scalia buttressed his stance by citing Abraham Lincoln’s somewhat misunderstood suggestion that the court’s pro-slavery decision in the Dred Scott case did not bind public officials who were not parties to the case. Lincoln never actually refused to follow the court’s decision, however, and the more recent history of defiance of Supreme Court decisions is an unhappy one. Segregationist officials in the South mounted “massive resistance” to the court’s school desegregation ruling in the 1950s, and their views helped justify the violence and intimidation directed against black school children in the ensuing years.
The same-sex marriage decision has provoked less resistance, none of it violent, but Scalia’s remarks can only encourage others to follow Davis’s example in turning away same-sex couples at the marriage bureau’s door. Justice Anthony M. Kennedy, author of the decision, took a different stance when he addressed the same issue at a Harvard Law School appearance in late October. Kennedy suggested that a public official with conscientious opposition to the ruling should simply resign instead of refusing to comply with the decision.
Scalia’s remarks on the marriage decision at Georgetown were less direct but if anything more incendiary. According to the New York Times’s account, Scalia said the decision had no constitutional basis and suggested the rationale for the decision could be applied to child molesters.
“What minorities deserve protection?” Scalia asked rhetorically. “What? It’s up to me to identify deserving minorities?” He went on. “What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.”
Scalia surely knows that gay men have been discriminated against for decades based on an unreasoning fear of them as sexual predators. So, for those who still disapprove of homosexuality, Scalia’s remarks were the equivalent of shouting fire in a crowded theater.
In any event, Scalia’s remarks fail in two regards. First, the court’s majority based the marriage decision primarily on due process instead of equal protection grounds. Kennedy reasoned that the right to select one’s marriage partner was “inherent in the concept of individual autonomy” protected by the Due Process Clause. The equal protection rationale received scant attention, as Chief Justice John G. Roberts Jr. noted in his dissent.
Scalia is entitled to disagree with what is called “substantive due process,” but his critique of the courts’ role in applying the Equal Protection Clause simply makes no sense. The constitutional provision that states cannot deny “the equal protection of the laws” to “any person” is not self-defining. The courts inevitably have the role of defining what legal distinctions fall within the prohibition.
The Equal Protection Clause would be a nullity if it were left to legislators to decide what groups could be treated unequally. Under Scalia’s logic, racial segregation would still be legal unless legislators decided to end it. Ditto, sex discrimination.
Scalia’s remarks may have been unscripted, but that is no excuse for spouting legal theories more in the manner of Fox News than an academic venue. In the political context, Americans have a present-day example of a supposedly serious figure gaining attention by spouting inanities and absurdities. So it is fair to suggest that Scalia has become, if he has not always been, the Donald Trump of the Supreme Court lecture circuit.