Time was when Antonin Scalia seemed fairly dedicated to the pretense of Judicial restraint. These days he appears content to be known as a political lobbyist for the right wing echo chamber. We can see this in the increasing number of public statements he has made on a range of political issues, effectively tipping his hand to those weighing their prospects in the legal arena.
…all of which makes Scalia’s role in the gay rights cases recently argued before the Supreme Court (Hollingsworth v. Perry and United States v. Windsor) that much more disturbing. Not surprisingly, the subject has come up in his extra-judicial engagements. Asked to defend his equation between homosexuality and sundry horribles such as incest, bestiality, and child pornography (among other things) in Lawrence v. Texas, Scalia made the following remarks at Princeton University:
It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told [freshman Duncan] Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?
Condescension aside, what Scalia is saying is basically Freshman Logic material. In his Dissenting opinion for Lawrence, Scalia had indeed used the standard argument form of a reductio ad absurdum against the position taken by the majority (holding that a Texas law banning sodomy was in violation of the Due Process Clause of the 14th Amendment). A reductio ad absurdum essentially consists of an attempt to derive an absurd conclusion from a given claim as a means of refuting it. If a given assertion can be shown to lead to absurd implications, so the logic goes, then one ought to reject it. In this case, the claim at stake would be something along the lines of a restriction on judgements (or laws) against homosexual activity. Scalia hopes to show that this holding will lead to an intolerable list of absurdities.
I sincerely doubt that Hosie failed to recognize the argument form, and Scalia’s response does little to shed light on the logic of his argument. The question in this case is more properly, whether or not Scalia’s had successfully shown that the claim made by the majority in Lawrence was actually absurd. In essence, the question is whether or not Scalia had successfully negotiated the transition from the claim he wished to refute to the absurdity he wished to assert in his argument. That transition is sometimes described as the ‘Sub-deduction’ of the argument. That is, in this instance, where the real argument lies.
And here is where the story gets interesting.
The sub-deduction of Scalia’s argument comes in a weak and a ‘strong’ version. By ‘weak’, I mean ‘truly shitty’ and by ‘strong’ I mean rather heartless’, but allow me to demonstrate…
Sub-Deductions in Need of a Workout: Sundry net warriors will be familiar with the weak version, because we’ve heard it from conservative Christians for years. It is essentially an argument against moral relativism, or at least a certain straw rendering thereof. We heard it a little more in the wake of Lawrence, and frankly, Scalia’s remarks in this instance tended toward the weak version, if only because their brevity does little to shed light on the logic of his original argument on the subject. Rick Santorum gifted us with one of the best examples of this tripe in an interview with USA Today back in 2003:
You have the problem within the church. Again, it goes back to this moral relativism, which is very accepting of a variety of different lifestyles. And if you make the case that if you can do whatever you want to do, as long as it’s in the privacy of your own home, this “right to privacy,” then why be surprised that people are doing things that are deviant within their own home? If you say, there is no deviant as long as it’s private, as long as it’s consensual, then don’t be surprised what you get. You’re going to get a lot of things that you’re sending signals that as long as you do it privately and consensually, we don’t really care what you do. And that leads to a culture that is not one that is nurturing and necessarily healthy. I would make the argument in areas where you have that as an accepted lifestyle, don’t be surprised that you get more of it.
Here, Santorum treats the right to privacy as an abandonment of moral principles altogether, arguing that if we can’t condemn homosexuality, then we can’t condemn anything. We can’t stop people from molesting children; we can’t stop polygamy; we can’t stop any number of horribles from happening. It’s worth noting that in this instance Santorum was arguing that the sex abuse scandals of the catholic Church were essentially a problem of homosexuality, which is in itself a pathetically ignorant position to have taken. But I suppose it’s fitting that someone facing what he takes to be the obliteration of moral judgement would respond to that by abandoning any honest effort to address the actual claims at stake in the issue.
Yes, Rick Santorum lives in a special place where ignorance and dishonesty come together and start a family, but sadly, he has a lot of neighbors in the land of ignorance which is the weak version of this argument. A large number of conservative Christians have approached the notion of a right to privacy in precisely these terms.
Setting aside the folk-demon of relativism, the problem with this take on right to privacy is it ignores the essential balancing tests by means of which that right enters into the American legal system. The point of a right to privacy has never been that you actually get to do anything you want so long as it’s in the privacy of your bed-room, but rather that government interest in stopping you must be weighed against the right to privacy. In simple terms, if the government has a legitimate interest in doing so (say if you are hurting a child), then the right to privacy folds and the government wins. If no such government interest is present, or if that interest pales in significance to the cost to others, then the right to privacy wins.
Here the sub-deduction fails for precisely the same reason that moral opportunists find it attractive in the first place. They hope to refute the notion of a right to privacy by connecting it to a range of genuinely harmful activities. Faced with a choice between condemning homosexuality and allowing child abuse, practitioners of this stratagem hope that most of us will throw the gay folks under the bus. But when real harms can be shown, the right to privacy would not prevail, and the sub-deduction fails.
The courts have never presented the right ti privacy as an absolute boundary to government regulation; it is if anything a sort of raising of the ante, a provision that requires government officials to show they have a good reason for what they are doing. Rick Santorum and Christian net-warriors all over the land don’t seem to understand this.
Scalia does, at least when he needs to.
Mach-Macho-Subdeductions: Now we come to the strong version of Scalia’s argument which is a rejection of the balancing tests themselves, at least as applied in Lawrence. In this case, Scalia isn’t making a broad point about the value of moral judgements. His point isn’t that granting a right to privacy leads to the destruction of western civilization, or that it will lead us to turn our children over to the nearest sexual predator. No, in Lawrence, Scalia was saying that the courts should not be the ones to weigh the benefits of legislation against the costs to people’s privacy, or at least that the court had failed to articulate a principle in that case which would enable it to make a sound distinction between issues like homosexuality and those likely to be regarded as more abhorrent, even to those in favor of gay rights. Absent a clear and coherent principle on which to make a decision, Scalia suggested that the court was making just the sort of judgement call that legislators ought to be doing, not judges. Such judgement calls are intrinsically political, and ought in Scalia’s view to be left to those branches of government best suited to making political judgements. It is in other words a variant of his oft-repeated call to Judicial restraint. Hence, the following remarks from Scalia’s dissent in Lawrence (at 603-4):
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts-or, for that matter, display any moral disapprobation of them-than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
There is in the strong version of Scalia’s argument a logical consistency which is entirely lacking in the pop-Christian variants of this same position as articulated by Santorum and legions of faith-bigots happy to explain why homosexuality is wrong. Where Scalia was actually making a point about the nature of Judicial reasoning, various cultural conservatives have carried forward that argument in the form of a simplistic claim that if we can’t condemn homosexuality, then we can’t condemn anything.
In the babblerized version of the reductio ad absurdum, the sub-deduction simply does not follow. In scalia’s, it is at least plausible.
Balancing the Unbalanced: But where does that leave us? Scalia would say that that it leaves us with a better balance of powers and a stronger system of checks and balances. Yet, one can see in Scalia’s own writing and comments hints at the costs of such an approach. Regarding the prospect of overturning Roe v. Wade, for example, Scalia offers the following:
Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
Here Scalia makes an interesting point, that removing the precedent of Roe v. Wade would not necessarily have meant an immediate ban on abortions everywhere, but rather the creation of legislative options which some states would take and others would not. The actual choices presented to women with unwanted pregnancies would then be a question of travel (at least for those in geographically unfortunate circumstances). It’s an interesting scenario, and one in which the right to have an abortion does not die with Roe v. Wade, but that scenario would of course be cold comfort for those women unable to travel. The right to an abortion now enjoyed under Roe would translate through this scenario into an option more or less available, depending on one’s finances and/or family obligations.
The right thus becomes a privilege, and that privilege then falls beyond the reach of many that need it most.
One imagines that the right to engage in homosexual acts (or any number of proscribed sexual practices) would translate into a similar choice under Scalia’s approach, and residence might soon become a function of sexual proclivities. Do you want the right to have sex with your own gender? Better then to move out of a red state under this approach. And we can only imagine just how much more heartache this will cause in some instances, and how many lives lived through deception in others.
Apparently, this is an acceptable outcome in Scalia’s view.
It may well be that the right to vote as a minority could also become a function of where one lives if we are to give up the ‘racial entitlements‘ included in the present voting rights act, as Scalia terms them. Granted the issue there is a technical one, pre-clearance of voting procedures for selected states, but the language of Scalia’s recent questions in reference to the Voting Rights Act is more than a little disconcerting.
Or consider Scalia’s remarks in Oregon v. Smith, 1990. In the majority opinion for that case he argued that the free exercise clause of the First Amendment did not provide members of the Native American Church with a valid reason for exemption from generally applicable state laws banning use of peyote. Scalia then moved on to suggest that while states might allow for such an exemption, it was not required of them, hence leaving the rights of religious freedom for the Native American Church open to the political process. What Scalia wrote next has always struck me as one of the most telling features of his approach to jurisprudence.
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
Here Scalia has essentially conceded to the tenuous status of minority rights under his approach (though perhaps he would say that they are not rights, as such). Those with less leverage over the political process must simply accept a reduced set of options? What are the benefits? The court will behaving as it ought to under Scalia’s view, showing proper restraint and deference to the legislative branch of government.
The problem in this instance is not as simple as the utter foolishness seen in remarks like those of Santorum, or even that of Scalia’s answer to Hosie; Scalia’s argument in Lawrence seems plausible to me, at least on the face of it. The problem is that the value which is central to Scalia’s argument in this instance (the strong version of the sub-deduction) is awfully hollow in comparison to the conceded costs of its adoption. What Scalia offers us is a narrative in which every part of government rests in its proper place. What he is willing to sacrifice in order to get that value is the actual liberty of countless minorities seeking only the enjoyment of options fully available to the rest of us.The absurdity to which Scalia points us in this strong version is one in which judges behave a little less like judges, and quite frankly some of us find that a little less absurd than the notion that liberty is best preserved by leaving this and so many other issues central to the happiness of many at the mercy of a political process Scalia which has proven time and again that it is inadequate to ensure.
Irony of Ironies: It is worth noting that the strong version of Scalia’s argument empowers the weak version. Whatever else he is saying, Scalia is also saying that if enough people seem to think that the only way to save our children from a list of horribles too awful to bear is to deny those of homosexual orientation the liberty to conduct themselves as they see fit, then they are within their rights to pass all manner of laws restricting gay rights. No effort to show that homosexual conduct really will hurt anybody would be needed in Scalia’s approach, at least not i the courtroom.
And in the legislatures and the court of political opinion, flippant remarks like those he have to Hosie, and patently offensive rhetoric like that of Santorum will be all that is needed to consign some people to lives lived without the benefit of meaningful liberty.