“It’s not up to the courts to invent new minorities that get special protections,” Supreme Court Justice Antonin Scalia recently told the Federalist Society. He was defending his decisions on DOMA and California Prop 8, implying gay people are a “minority” under the law. Scalia often makes these anti-“minority” decsions. Replace the word gay with almost any group smaller than the white male, and sometimes when it suits him, female population and he is exhaustingly predictable.
Scalia often lives in a topsy-turvy world where his own words oddly prove him wrong and this is one of those times.
Gays Don’t Want to be in the Minority
In many of his rulings, the “minorities” aren’t asking for “special protections”. Gays didn’t ask to restrict straight people’s right to marriage. They asked for the same protections as the majority. In effect, they wanted to join the majority.
One would think Scalia’s unshakable belief that the majority is the gold standard for treatment would suggest he wants to build the majority. After all, wouldn’t as large a majority as possible be preferable using his logic?
You’d think, but that’s not an honest reading for a Constitutional absolutist like Scalia. The Constitution doesn’t mention a word about majority rule, even by implication. Even supposed “majority-rule” functions like voting get an out. The Electoral College isn’t a majority-rule concept. Minorities and pluralities “win” elections and damn the popular vote. Yet, Scalia voted in favor of Bush even though the popular vote went to Al Gore. Is Scalia for majority rule or not?
If the founders intended strict majority rule, they wouldn’t have included minority protections. There are many more Christians in this country by far, yet the First Amendment “prohibits the making of any law respecting an establishment of religion, (and/or) impeding the free exercise of religion“. It doesn’t limit those protections to Christians. If you are an absolutist, as Scalia claims he is, you don’t get more absolute than that.
The Constitution is ‘Dead, Dead, Dead’
Scalia caterwauls the Constitution is “dead, dead, dead” and thou shalt not change or interpret a damned word differently. But there’s a problem there too.
This is the 21st century, a world with many concepts and technologies considered witchcraft in the 18th century. But the framers anticipated this. Article V puts forth a process for amending the Constitution. If the framers hadn’t anticipated changes, why create a process to do just that?
While Scalia may see himself as a mighty Constitutional scholar and defender, he’s a damn poor linguist. The Constitution is, if nothing else, words. But words are important. Don’t waver only when it serves your own prejudices and purposes. And if you must waver, which is advisable, waver based on the law not a fussy notion that changes in the face of your own hot air. Scalia repeatedly ignores context. Context, which is a malleable thing, changes and the nation would be well-advised if he remembered that.
I’m decidedly non-absolutist, but if you anoint yourself an absolutist, be absolute, absolutely.
- Justice Scalia Calls Gays an ‘Invented Minority’ (towleroad.com)
- Justice Scalia Thinks The LGBT Community Is “Invented” (queerty.com)
- Supreme Court Justice Antonin Scalia chastises colleagues for ‘inventing’ minorities (washingtontimes.com)
- Justice Scalia: Supreme Court Out of Control (libertyfirewall.com)
- JUSTICE SCALIA: My Decisions Are Sometimes ‘Stupid And Even Cruel’ (businessinsider.com)