Scalia’s Dissent

AS you are probably aware the United States Supreme Court today ruled in United States v. Windsor, a case that struck down the federal benefits portion of the Defense of Mariage Act (DOMA). As is usual in such matters barbs were quickly thrown at the so-called “four conservative justicies” with Justice Scalia taking the brunt of it (at least that is my impression from my politically-oriented Facebook feed). I use “four conservative justicies” in quotation marks because this would-be troupe of legal scholars disagree with one another far more than is widely recognized.

There is a mechanized hatred of Scalia discharged with every controversial Supreme Court decision. And it sadness me. The accusations directed toward him blithely glide by matters of prudent legal analysis and strike instead at his character. Few of us will read his dissent and instead, for reasons unbeknownst to me, assume he is a bigot. He must be a bigot you see, because we should march toward equality for same-sex couples and legal or not DOMA had to go. We seem to believe that the law is fungible and should be bent to comport with public opinion rather than the principles on which it was founded. Perhaps. But I won’t quarrel with those who disagree.

I believe in equality for same-sex couples. Some of my best friends are gay. I marched in Seattle’s PRIDE parade last year. I am glad a particularly deleterious portion of DOMA was struck down. But I will not pretend it was the correct legal decision because I have little knowledge of legal precedent or proceedings. Maybe it was, maybe not. And because of my ignorance I will not speak ill of those who disagree with the decision on legal grounds.

Undoubtedly, legal scholars of all persuasions will argue the decision’s merits for years to come. I read Scalia’s dissent so that at least I could be educated. I don’t know if Justice Scalia is a bigot. I want to believe that he isn’t. Either way his dissent today sheds no light on that question whatsoever. Indeed, I found much of his opinion moving and powerful as I do every Supreme Court opinion I have read. Detached from its context as falling on “the wrong side” of a matter of grave importance to so many it is hard to find traces of the homophobic man we so quickly label him to be.

Here are the opening and closing paragraphs of his dissent:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America…

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

On Consistency

As I like to say, “Consistency is the most overrate virtue.” But two much smart men have said it better.

The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.
-F. Scott Fitzgerald, “The Crack-Up” (1936)

A foolish consistency is the hobgoblin of little minds.
-Ralph Waldo Emerson, “Self-Reliance”