Op-ed: Was Scalia... Right?

By A.W. Strouse

Originally published on Advocate.com July 09 2013 5:18 AM ET

Like many other young liberals, I’ve prayed that Antonin Scalia might suddenly be struck by lightning. He has, among leftists, a reputation as a callous psychopath. We tend to think of him as a virulent homophobe, as a right-wing ideologue who abuses his power as Supreme Court justice in order to inflict his warped worldviews onto the American people. If — god-willing — President Obama could appoint a lefty justice to the Court, then wouldn’t we all be much better off?

Well, maybe.

Scalia recently suggested that liberals might do well, were we to resist imagining him as a monster. When the court ruled, in U.S. v. Windsor, that the Defense of Marriage Act is unconstitutional, Scalia dissented, holding that the Court had no authority to invalidate the law. Scalia points out in his dissent that supporters of DOMA are often perceived as “unhinged members of a wild-eyed lunch mob” and “enemies of the human race.” But, he argues, an honest political discussion requires that both sides first acknowledge one another’s point of view. Maybe the old coot has a point.

It’s important, in a very basic way, that we have some regard for the humanity of our political opponents (otherwise we are likely to become “monsters” ourselves). But—to be a bit more cynical about it — we also should try to see where the other side is coming from, because doing so will make it easier for us to beat them. In order to act effectively in the political arena, we need to stop painting the right as dumb-dumbs (as we did with former president George W. Bush), religious zealots (Rep. Michele Bachmann), or as psychos (Scalia). We need to start accepting that their views have — for better or worse — mass appeal. Monsters or morons, conservatives have done a good job advancing their agenda, and maligning them hasn’t helped us in the fight to build a more just society. Even more importantly, when we finally realize economic, racial, gender, and sexual justice in the U.S., all of these supposed creeps are going to still be living here, so we must figure out how to bring them on board.

In that case, let's attempt to take a clear-headed view of the recent Supreme Court decisions, to understand why and how we actually won, and what the other side had to say. The narrative is actually quite complex.

Now, we might expect the usual story — that the liberals on the Court sided with LGBTQ rights, and threw out DOMA and Prop. 8; while the Republican-appointed justices lost their bid to oppress gay people. But, actually, what happened was a lot less clear-cut.

While the Court’s lefties did indeed vote to overthrow DOMA, Justices Sotomayor and Kennedy actually voted to hold on to Prop. 8. While Scalia and his ilk did try to keep DOMA alive, he was joined by Breyer, Ginsburg, Roberts, and Kagan to kill Prop. 8. Rather than being divided into opposing sets of tops and bottoms, the nine honorable justices are all pretty versatile when it comes to gay marriage.

Take, for example, Justice Anthony Kennedy, widely regarded as the Court’s political wild card, and the man who penned the Court’s majority decision in Windsor. Kennedy argues that DOMA violates due process and equal protection. But — the dastardly turn-coat — Kennedy actually voted in favor of upholding Prop. 8. In Hollingsworth v. Perry, the Court’s majority ruled that Prop. 8 can be thrown out, as per a lower court’s previous ruling.  But Kennedy penned the dissenting opinion, essentially arguing in favor of Prop. 8. Kennedy’s reason for supporting Prop. 8 is entirely legalistic, and perhaps not as gripping as The Real Housewives of New Jersey, but it warrants some closer consideration, and some attention to how the Prop. 8 case unfolded.

Prop. 8 was voted into law by public referendum in 2008. More than half the voters in California agreed to prohibit gay marriage. When same-sex couples sued the state of California (Perry v. Schwarzenegger) they won in court in 2010. District Court Judge Vaughn Walker for the Northern District of California ruled that Prop. 8 was unconstitutional. Subsequently, Governor Schwarzenegger declined to defend Prop. 8 — that is, he and the state didn’t bother to appeal the district court’s ruling. But Schwarzenegger did allow that the supporters of Prop. 8 could, on the state’s behalf, continue to defend the law. These supporters—the Hollingsworth of Hollingsworth v. Perry — appealed the decision, all the way up to the Supreme Court. And, as they say, “the rest is history.”

The “rest” being, remarkably, that a Bush-appointee, Chief Justice Roberts, penned the majority decision striking down Prop. 8. In doing so, Roberts was joined by four other justices, including that notorious homophobe Antonin Scalia (may god strike him dead). Surprisingly, the left-leaning Kennedy, along with Obama-appointee Sotomayor, voted in defense of Prop. 8. This is because, in the end, the court’s decision had nothing to do with gay rights — the case hinged upon a legal technicality.

For Roberts and the majority, it simply isn’t permissible that Hollingsworth could defend Prop. 8. Defending the laws of the state of California is the job of elected officials, not the sponsors of propositions; and Hollingsworth has no legal standing to appeal the decision of the District Court. Legalistically, only Schwarzenegger could have appealed to the Supreme Court, and Hollingsworth has no business trying to enforce the state’s laws.

For Kennedy, in contradiction, the democratic process is what matters most: the people voted, and their voice should be heard. The people, after all, supported Prop. 8, and they enacted it into law; and Hollingsworth, as a concerned citizen, has the right to defend the state’s laws in courts. As Kennedy writes, “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.” The people of California, in voting for Prop. 8, exercised their right to make a law, and it is ultimately that right that needs to be respected. But when the votes were tallied, Roberts’s opinion won out, and Prop. 8 is relegated to the dustbin.   

The DOMA ruling (U.S. v. Windsor) was likewise about a technicality. In this case, Edie Windsor — by now the belle of every gay ball from Chelsea to the Castro — sued the U.S. government, because she had been discriminated against under DOMA. In 2012, the U.S. District Court for the Southern  District of New York ruled DOMA unconstitutional. The Obama administration — which is charged with defending federal laws in court, just as Schwarzenegger was responsible for defending Prop. 8 — appealed the ruling to a higher court. But (and this is the twist) Obama asked the higher court to affirm the lower court’s ruling. The case came before the Court of Appeals, which again ruled DOMA unconstitutional; and Obama appealed once more to the Supreme Court, again asking that the lower rulings be affirmed.

But, as Scalia points out, it is not the job of the court system to hear cases in which both parties are in agreement. The Constitution grants the Supreme Court the power to decide controversies. But, properly speaking, there is no controversy in U.S. v. Windsor. As Scalia writes: “What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that the judgment was correct.” Incredibly, the Court has never before heard a case in which both parties were entirely in agreement; and, when you think about it, it isn’t at all common that people sue each other when they aren’t in disagreement.

By manipulating — and perhaps even misusing — the judiciary, the administration undertook what Scalia calls “an executive contrivance.” Our guy Obama — Juris Doctor and professor of constitutional law — undertook a campaign of judiciary activism par excellence. He played the court system and ended up winning big. But he was only able to do so because he found five sympathetic justices who were willing to ignore the Constitution, and 200 years of legal precedent, in order to hear a case that technically wasn’t a case to begin with.

In the final reckoning, we didn’t win because we converted the hearts and minds of our fellow citizens, and convinced them that DOMA is hateful and Prop. 8 an abomination. Instead, we won because a group of nine lawyers eked out decisions that worked to our favor. We lost Prop. 8 fair and square, and DOMA was passed because we didn’t lobby hard enough, organize well enough, scream loud enough in the streets. Now, having lost through the legislative process, we have litigated our way to victory, paying high powered lawyers to do the work for us, instead of getting our hands dirty with democracy. 

And a cool-headed appraisal of the Court’s opinions shows us: litigation is like Russian roulette. None of these justices are really to be trusted. None, of course, are monsters; but neither are any of them particularly eager to champion ideals like justice, liberty, and freedom. The Supreme Court is made up of nine legalistic personalities who take up their political positions based on hair-splitting questions of the law’s dead letter. But if the spirit of the law is what matters, then we haven’t really won — not until we win by getting the population at large to support same-sex marriage. In that sense, Scalia is entirely right: “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.”


A.W. STROUSE writes poetry, drama, short stories, literary criticism, and political commentary. His work has appeared in various publications and can be found online at AWStrouse.com. With a B.A. from the New School and an M.A. in Medieval Studies from Fordham University, he has worked as an activist, lobbyist, journalist, and teacher. He is currently a Ph.D. student in English at the CUNY Graduate Center, where he studies medieval poetry, with a special focus on the history of love. He also owns and curates the Ferro Strouse Gallery.