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How could Scalia have it so wrong on his job and marriage equality?

Heather Barnett is a freelance writer and foodie whose work has been featured in blogs, websites, magazines, and TV and radio ads. She spends her free time relaxing with her soulmate, Keith; her dog, Mosby "The Fly Slayer;" and Felix th...

Is Justice Scalia as out of touch as his dissent to the marriage equality decision makes it look?

Justice Scalia's scathing dissenting opinion to the Supreme Court's majority decision on marriage equality on Friday wasn't just self-important and condescending, it was riddled with half-truths and outright nonfactual information. And that has a lot of people questioning his ability to make rational decisions on behalf of the nation. Are they right?

His sole focus on the Constitution is misplaced

Scalia keeps focusing on the "Constitutional rights" of states and the majority of the people, yet he ignores the Constitution's own prescription for the powers of the Supreme Court. It states that the Court has jurisdiction over more than just the Constitution itself, but over federal law, over disputes between states and over disputes between the people of a state and their state government.

He can cite the votes on propositions all he wants. The point is that those propositions, passed by the people or not, violate the equal protections guaranteed by the 14th Amendment, which says that no state "shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

According to Justia, "the required elements of due process are those that 'minimize substantively unfair or mistaken deprivations' by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests. The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel." All of the cases (which were consolidated) were inspired by other issues that being married would have solved: seriously inhibiting parental rights (to the potential detriment of the children) and complicating death certificates that allow spouses to be buried together (and, as in the DOMA case, may cause undue financial consequences).

In essence, the states were wrong in bringing the proposition and in enforcing it. There's no exception clause there. It doesn't say "unless they're gay" or "unless the people think it's OK." It doesn't get much more Constitutionally black and white than that. And I wonder if Scalia failed to notice that "equal justice under the law" is written above the main entrance of the building he works in. Equal protection plays into this because lesbians and gay men are not just being denied the right to officially declare their love in public.

Additionally, as Scalia should well know, the state law only trumps federal law when people gain more rights. That's how we have the right to openly (or not) carry guns (even assault rifles) in Texas.

The Supreme Court has repeatedly held that due process is required when either the state or federal government decides to inhibit a person's liberty and that the Supreme Court can invalidate a law that isn't rationally related to a government purpose (not someone's religious or personal beliefs — Scalia is Roman Catholic).

The ruling did not, as Scalia claimed, "create 'liberties'"; it protected them. Additionally, while I agree the freedom to govern ourselves is important, governing ourselves doesn't give us the right to infringe on the rights of those who disagree with us.

He thinks he knows what people thought almost 150 years ago

In Scalia's dissent, he says, "When it comes to determining the meaning of a vague constitutional provision — such as 'due process of law' or 'equal protection of the laws' — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice [limiting marriage to one man and one woman] that remained both universal and uncontroversial in the years after ratification." The assertion they didn't expect it to limit such a practice doesn't mean they were, therefore, opposed to a provision limiting it because they may never have considered it (same-sex marriage was surprisingly common in the Old West). This kind of logical fallacy is beneath a man with this much legal experience.

Misunderstanding how the Constitution works

Scalia notes that SCOTUS has no basis for striking down the practice of defining marriage because it's not expressly prohibited by the Constitution. Actually, that whole "equal protection" clause as we've been interpreting it for at least 50 years says otherwise. The Constitution, as he himself points out, doesn't once mention marriage. According to him, then, straight people also don't have the right to get married. Yet people who are infertile, elderly, mentally ill (assuming they haven't been declared incompetent) or a criminal are allowed to get married. They'll even let a 16-year-old get married with parental consent — or even with a ruling by a judge against the parents' wishes, in some states.

The thing Scalia seems to have missed is that Constitution and Bill of Rights do not mention moral issues at all. They simply represent the limitations placed on the government intended to protect individual liberty. It doesn't even explicitly prohibit murder!

Hypocrisy much?

"Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant," Scalia states. But isn't that what he's doing? As many logical inconsistencies as exist in his dissent, I submit he's doing exactly that (or that he doesn't have skill as a lawyer).

He points out that there are no evangelical Christians or Protestants on the court. Yeah, but that's irrelevant if your job is to interpret law, not what your religion would like the law to be. (He failed to mention there are also no atheists, Muslims, Pagans, etc., which should also be important if that's your argument.)

In reality, all five of the justices who voted to strike down same-sex marriage bans are members of religions (Roman Catholic and Judaism) that officially reject same-sex marriage as immoral. It's hard not to imagine that it was actually Scalia's decision that is born of anything but his own religious views since these five justices went against their established religions' positions.

Accusing the other justices of trying to overthrow the government

For those who weren't aware (I had to look it up), "putsch" is an attempt to overthrow the government. Scalia apparently thought he could sneak that in and no one would look it up. But an overthrow isn't what happened at all. Just like it wasn't what happened when the Supreme Court ruled interracial marriage was protected under the law or that "separate but equal" was also a breach of the 14th Amendment.

His own hubris

He mentions the hubris of the other judges and fails to recognize his own in yet another logical fallacy. Scalia says they "know" they are right (his italics). Yet doesn't he also know they are wrong? He cites historical figures who he apparently thinks agree with him on this issue. But do they? One of them, Oliver Wendell Holmes, actually wrote that common law evolves because civilized society evolves. As such, the interpretation of the Constitution must evolve with modern standards or they will constantly be in conflict.

Scalia also fails to see or acknowledge that many of those figures lived in different times. They lived in eras in which, in order to protect the rights of the people in a less "globalized" society, the states' authority had to be protected from the federal government. That's flip-flopped now.

These days, we have to send in the National Guard and initiate DOJ investigations on out-of-control and increasingly militant local police, because the states can't or won't do it themselves. These days, states willfully ignore the inherent racism in flying a symbol of hate on a flagpole over their capitol until people are murdered by a racist and someone has the common sense to point out how maybe that symbol of hate makes some people think murdering black people is secretly acceptable to the government and to other citizens. We live in an era in which state leaders refuse to accept that the Supreme Court's majority decision is the law of the land and attempt to not-so-cleverly subvert it in order to continue putting down the minority, regardless of the damage it also does to the majority.

It is hubris to assume the Supreme Court is wrong solely because it disagrees with you — you must provide evidence (that's how the law works). The majority of America disagrees with you, too. Are we all trying to overthrow the government, or are we just telling the government how to do its job?

Refusal to accept precedent

In essence, this matter has already been decided. In a 1967 Supreme Court ruling regarding interracial marriage:

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State," the court ruled.

It continued with language just as applicable to same-sex marriage as it was to interracial marriage, saying, "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy." The fact that a bisexual person (or even a gay person willing to make a sacrifice) is allowed to marry a person of the opposite sex if they so desire is parallel with the same discrimination.

Scalia's abject failure (and likely willful ignorance) to acknowledge that this precedent is on equal footing with statutory and regulatory law (it is just as much the law of the land) calls into question his objectivity and fitness for duty. Not only did he ignore this prior ruling (which, while it doesn't address marriage equality, does set a precedent for the measure by which a law's justness is determined), he cited an irrelevant case in its stead, quoting it out of context with regard to this issue.

In his dissent, he quotes a previous section of the opinion on U.S. v. Windsor (written by Justice Kennedy, who also wrote the majority opinion in the current case, Obergefell v. Hodges) that said that traditionally, decisions about what constitutes marriage have been left up to the state.

Scalia fails to mention that the legality of the couple's marriage wasn't what was at stake in the decision; it was legally recognized under New York state law already. The case was about the appropriate implementation of tax code at the federal level. Windsor paid over $350,000 in estate taxes on money left to her by her spouse and was denied a refund. Essentially, in this case SCOTUS ruled that the U.S. had violated existing tax requirements and the Defense of Marriage Act in the method used in taxing Edith Windsor's deceased wife's estate and denying her a refund.

The Supreme Court simply ruled in U.S. v. Windsor that if a marriage is legally recognized by the state and if the IRS has traditionally deferred to the state's laws for eligibility, they must respect the same with regard to same-sex marriage because DOMA doesn't preclude states from allowing or recognizing same-sex marriage. (DOMA, as we all know, was struck down later by SCOTUS, as it violated the Fifth Amendment and was therefore unconstitutional.)

Why pick on Scalia?

That's a fair question. He wasn't the only dissenter, nor was he the only one to cite some of these same reasons. However, the thinly veiled condescension and egotism in his clearly subjective dissent has justifiably caused quite the media uproar.

It is clear that Scalia's dissent represents a rationalization of his own dogmatic religious views, which have no justifiable basis in government — where our First Amendment prohibits establishing a national religion or preventing the free exercise of religion (and basing a law on fundamental Christian beliefs that don't even carry from one denomination to another is just that). Even the Pope knows he has no judicial jurisdiction here.

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