Thoughts on Scalia’s Rant on DOMA

DOMA is defeated, and Justice Scalia is not happy about it.  It is splattered over the media (huffpo , politico, etc.) about how he is throwing a tantrum like a child.  I found it rather strange that a Supreme Court Justice, who should be arguably one of the best logical thinkers and one of the brightest minds, would be portrayed so negatively in public media, so I decided to look into it a bit more in depth.

I looked up the original source on the SCOTUS website and read his dissent, which turned out to be more nuanced than what the media are reporting.

The first part about actual jurisdiction actually does make sense, and he seems to make a relatively convincing argument.  However, not being a lawyer, nor well versed in the nuances of domain of jurisdiction, I cannot judge the validity intelligently.

His portrayal about the majority demonizing the minority (…the majority has declared open season on any law that…can be characterized as mean-spirited……To question its high-handed invalidation of a presumptively valid statute is to act … with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homo­sexual.  All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence…) is worth looking at.  Scalia points out that the lawmakers did not necessarily act in malice by supporting DOMA.  It seems true based upon the language of the majority decision, and I would speculate that the court majority came to that conclusion in hindsight.  After all, slavery, also sanctioned by the Bible, seemed like a good idea back in the days.  However, the reality is that this act was enacted in 1996, not 1896.  I believe that a lawmaker owes it to their constituents to think everything through and understand exactly what they are voting on, and what that legislation implies BEFORE they act.  Sadly, that is probably the last thing on their minds, with DOMA being one example but the PATRIOT act being a more egregious violation by far.  Outright malice?  Probably a stretch.  In my opinion, it is a lot more likely to be the result of blind recklessness.  However this is simply an observation on the language of the judgment, and not an argument why DOMA should stand.  I agree with Scalia about the post-hoc reasoning and tribal-like false dichotomy; however it is off-topic.

His other rant about court sanctioned homosexual sodomy leading to a slippery slope (…when the Court declared a constitu­tional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal
recognition to any rela­tionship that homosexual persons seek to enter.”…), is what I have the biggest issue with.  This, I contend, is the main issue most conservatives find difficult to deal with.  The actual act of homosexual sex.  It disgusts or at least pretends to disgust them, and instead of risk exposing their bigotry and openly condemning the people that practice consensual homosexual acts, they employ different tactics such as deferring to a deity of choice or state legislation.

There are two main objections I have to this issue.  The first is that it is not the state’s business, or indeed anyone’s business aside from the participants, to be concerned with consensual sex, whether it is between members of the same sex or not.  A consensual act with no victim should not be a crime (and according to Lawrence vs. Texas, is not a crime).

The second objection I have is that this alleged disgust-turn-hatred obsession focuses on such a small part that it trivializes marriage to the physical contact of various body parts.  I would like to think that marriage is about commitment, partnership, companionship, intimacy, and above all, love.  Yes, physical sex is part of it, but I would argue that few get married with that as the primary motivation.  If the slippery slope argument is the best reasoning (non-technical argument) that can be put forward against gay marriage, then the strength of their argument is sad indeed, and Scalia should know that.

This is obviously a dividing issue that evokes strong emotional feelings.  A personal knee-jerk, visceral aversion towards a certain behavior (such as Pat Robertson’s here) should not be the basis for a law.  Rather, it is careful, solid reasoning that should prevail.  Paraphrasing Johnathan Haidt, pointing out reasoning flaws in a moral issue and expecting others to change their stance, is like wagging a dog’s tail with your hand and expecting it to feel genuinely happy.

What also bothers me is that Scalia, being a Supreme Court Justice, entrusted with immense power, can not only let emotion contaminate his thinking, but also issue it as an official dissenting opinion.  Humans do not get it right all the time, and neither do groups of people like SCOTUS (case in point: Japanese internment during WWII).  However as a Supreme Court Justice, he owes it to the people to at least think clearly, carefully, and impartially on every issue that comes before him.  That is what the job entails.

I am also somewhat disappointed at the wording of the majority decision. It implies that participants in the legislation and enactment of DOMA acted in bad faith, with the express purposes of demeaning, discriminating, and influence on state legislation, largely ignoring the many legitimate federal issues DOMA addressed.  Although I am glad that DOMA is defeated, it does not quite leave a good taste.

Leave a Reply

Your email address will not be published.