Let us be honest. Antonin Scalia is correct. It is not his job to determine what is or is not moral. His job is to determine what is and is not legal. There is a difference. The problem for Scalia is that he wants the Supreme Court to stop deciding what he sees as moral issues.
Justice Scalia gave a speech before the NC Bar Association entitled “Mullahs of the West: Judges as Moral Arbiters.” In it Scalia decried the fact that many judges were having to rule on issues such as abortion, doctor-assisted suicide, the death penalty, and of course, same-sex marriage. He claimed that the judges were having to act as moral experts and that many of the issues coming before the courts were moral issues that have no “scientifically demonstrable right answer.”
Alright, someone hand me a robe. Apparently, I’m more qualified to be a justice than Scalia is.
While Scalia is correct in that it is the community’s job to decide what is and is not morally acceptable, and not the courts, it is the job of the courts to decide what is and is not legal. To that, we turn to one of the founding documents of this country, and to the founding principles of this nation.
According to the Declaration of Independence, all people are endowed with life, liberty and property. Alright, the wording in the Declaration is ‘live, liberty and the pursuit of happiness.’ The original wording it was taken from states ‘property’. The thing is, a judge’s first question when weighing whether or not a law is valid is this:
1) does the act this law makes illegal violate someone’s right to life, liberty, property or happiness?
The reason why theft is a crime is not because it is immoral, but because it violate’s someone’s property. The reason why murder is a crime is because it takes away someone’s life. The reason why kidnapping is a crime is because it takes away someone else’s liberty.
The reason why adultery is not a crime is because, while immoral, it does not deprive anyone of life, liberty or property.
2) does this law make illegal something that does not violate anyone but the specified group’s life, liberty, property, or happiness?
Whether or not you find same-sex marriage to be immoral or not, the fact of the matter is, its being illegal is a violation of people’s rights to property and happiness.
That’s it, really. Those two questions should be the only two according to the Founders of this nation. Is it moral? Who cares. After all, various Christians think that Jewish practices are immoral, but they are allowed to believe that without 1) them being thrown into jail, and 2) Jews being run out of this nation.
So, judges should ask themselves just this- does this law prevent or deter people from taking away a person’s life, liberty, property or happiness without due process, or does this law take away someone’s life, liberty, property or happiness without due process?
By and large, Scalia sounded more like he was whining about the fact that some of his colleagues on the Supreme Court believe in a ‘living Constitution’ that reflects ‘evolving standards of decency’. Yeah, sounds like his usual rant. The Conservative jurist has always had a problem with his job. While he claims to be a strict construtionalist, the reality is that he has never abided by even the letter of the Constitution in his rulings.
In fact, if he were to vote against a complete overturning of both the Defense of Marriage Act and California’s Prop 8, Scalia would prove that he is a hypocrite when it comes to the Constitution as both violate the second question that should be asked about the law.
Scalia, of course, believes that the Constitution has to grow somewhat in order to deal with new phenomena, but that the changes must remain firmly moored in the founding principles. Which, as said, if he does not vote to strike Prop 8 and DOMA, he will be ignoring despite his claims that most moral issues are not new.
In fact, while Scalia has always claimed to be a jurist looking to base his rulings on the founding principles, in 2003, he showed that he doesn’t care about them. He voted against overturning Texas’ anti-sodomy law claiming that Americans have the clear right to enforce traditional moral restrictions against homosexuality and to “to protect themselves from a lifestyle that they believe to be immoral and destructive.”
If Justice Scalia hates dealing with moral issues so much, perhaps he should have recused himself from that, or maybe the hatred of dealing with moral issues has come from the decade since that ruling as he has seen his Catholic-based morality steadily eroded in the American public.
John Sarratt, a Raleigh attorney, asked Scalia about hw he would have ruled in Brown v. Board of Education. The justice claimed he would have voted with the majority, but claimed that state leaders would have eventually removed educational barriers based on race. While a measured argument, it is pretty much cow pies as it would have been at least another thirty to fifty years before that may have happened.
Sarratt stated after the speech that “I tend to be outcome-based, and if the outcome is equality for all people, then I’m for the courts moving in that direction, before the people are ready.”
Meanwhile, on Thursday, Dr. Rachel Maddow Phd, noted that “The argument to keep anti-gay laws in our country depends in fundamental ways on the belief that being gay is a choice, and you can choose not to be gay if you don’t want to be gay. [Exodus International] have not been changing gay people to straight people for the past 37 years, but now they will stop trying. There are certainly going to be other groups taking up the mantle, but as of today they are done, and they say they are sorry. And the Supreme Court rules next week.”