Scalia Gets It Pretty Much Right

WASHINGTON, DC - OCTOBER 02:  U.S. Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute (AEI) Oct
WASHINGTON, DC - OCTOBER 02: U.S. Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute (AEI) October 2, 2012 in Washington, DC. The American Enterprise Institute and the Federalist Society held a book discussion with Justice Scalia, who co-authored the book 'Reading Law: The Interpretation of Legal Texts.' (Photo by Alex Wong/Getty Images)

Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the "lawlessness" of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: "Is Polygamy Next?" (Are we sliding down a slippery slope?)

So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, "lacking even a thin veneer of law" and full instead of "the mystical aphorisms of the fortune cookie"? (2) Or is Scalia's dissent, as his critics charge, "unhinged," "bitchy," "juvenile" and "hysterical" (all words that have been applied to it)? And (3), is it inevitable that the majority's arguments will lead to the legalization of plural marriage? I would answer "yes" to (1) and (3)," no" to (2).

First, a little background. Obergefell is the culmination of a series of opinions that began with the dissents in Bowers v. Hardwick (1986), a case that upheld Georgia's anti-sodomy law. Seventeen years later in Lawrence v. Texas (2003), the dissenters became the majority and the majority became the dissenters, a reversal confirmed and strengthened in United States v. Windsor (2013) and now again in Obergefell. The sequence marks the passage from a view of law in which the legal status of an act (like homosexual sex) followed from an entrenched moral code to a view in which moral disapproval of a practice is not "a sufficient reason for upholding a law prohibiting it" (Justice Stevens, dissenting in Bowers). The passage was pretty much complete when Justice Kennedy declared in Lawrence that "profound and deep convictions accepted as ethical and moral principles do not answer the question before us"; do not, that is, answer a legal question. Law and morality, while obviously joined at some general level, are in practice two different things.

Scalia's complaint against the Obergefell majority -- although he doesn't put it this way -- is that once again a moral perspective has been allowed to displace the process of patient legal analysis. This time the morality is different; not the stern old testament morality that ruled in Bowers and was overruled in Lawrence, but the morality of love, identity, intimacy, spirituality, aspiration, dignity, self-expression and respect -- all words Kennedy uses and words that bear the mark of the vaguely new age sensibility Scalia derides when he refers to the "opinion's showy profundities" that are, in fact, "profoundly incoherent." What exactly, he asks, is the legal import of intimacy and spirituality, and "who ever thought" that they were "freedoms" of a kind that merited constitutional protection? How can this claim be traced by a legal analysis to clauses in the Constitution? How can the court justify the creation of "'liberties' that the Constitution and its Amendments neglect to mention?"

There may be answers to these questions, but, Scalia insists, the court doesn't really answer them. It instead proclaims the virtues of the moral perspective it "really likes" while heaping scorn on the moral perspective it "really dislikes."

Once the court's preferred morality is in place, it is hard to see what stands in the way of deriving from it a case for the protected constitutional status of polygamy, also a form of intimacy that could be said to express the dignity, identity and self-expression of those who engage in it. The legal judgment against polygamy was established in an opinion that cited as its chief support the older morality the court has now rejected. In Reynolds v. United States (1879), a Mormon's claim that he had a right to engage in plural marriage because his religion commanded it was disallowed. Polygamy, the court declared, "has always been odious among the northern and western nations of Europe... and was almost exclusively a feature of the life of Asiatic and of African people." In short, we white Protestants just don't do that kind of thing. "It is impossible to believe," the court continued, that the "constitutional guaranty" of the free exercise clause "was intended to prohibit legislation" criminalizing plural marriage.

Now it would seem to be impossible to believe anything else. With the prohibition against interracial marriage struck down, the prohibition against gay sex struck down and now the prohibition against gay marriage struck down, the prohibition against plural marriage cannot be far behind. To be sure, there are some problems that would have to be thought through or re-calibrated, such as community property laws, inheritance laws, custody laws, probate laws, tax laws and the like. But that's just a matter of tinkering with the details. The main principle -- the protection of "our most profound aspirations" (Kennedy) -- demands its extension to polygamy.

That is exactly what Scalia predicted in his dissent to Lawrence when he responded to the majority's insistence that its decision had no implications for the issue of gay marriage. "Don't you believe it," Scalia retorted. "If moral disapprobation of homosexual conduct is 'no legitimate state interest'... what justifications can there possibly be for denying the benefits of marriage to homosexual couples?" He was right, and there is no reason that the logic of his argument should stop there. The Obergefell majority says as much when, after noting the expansion of freedom in Lawrence, it declares, "It does not follow that freedom stops there."

The court now finds itself in the same place with respect to "intimate domestic arrangements" as it has been in for a long time with respect to the issue of conscientious objectors. Before United States v. Seeger (1965) and Welsh v. United States (1970), conscientious objector status was granted to those who had undergone "religious training" and expressed a belief in a "Supreme Being" commanding "duties superior to those arising from any human relation" (Seeger) -- in short, an adherent of a traditional religion. But before it was done the court concluded that a constitutionally protected objection to war "need not be confined in either source or content to traditional or parochial concepts of religion." Instead, what is required is that the person seeking an exemption from military service profess a set of beliefs that "occupy in the life of that individual a 'place parallel to that filled by... God' in traditionally religious persons" (Welsh).

And what might that set of beliefs be? Why, almost anything. The requirement is not doctrinal or ceremonial; it is emotional. The beliefs must be "deeply held," whatever their content, and if they are, that is sufficient to earn the exemption. And given that no device for measuring the depth of one's beliefs -- no sincerity meter -- has ever been invented, there would seem to be no principled basis for denying anyone's claim. (Of course, there is now no draft, but there may be one again, in which case the issue of conscientious objection would return.)

Whatever the problems with the traditional definitions of either conscientious objection or marriage -- and there are many -- they at least provided a formula for adjudicating individual cases: If you're a man and a woman, you can get married; if you believe in God and belong to an established church, you can get an exemption. By departing from tradition and becoming more inclusive and less doctrinaire, the court has deprived itself of any brakes that might stop the train it has set in motion. Many will think this is a good thing. The question Scalia and the other dissenters raise is whether it is a legal good thing.

Read a follow-up to this post here.

Stanley Fish is the Davidson-Kahn Distinguished University Professor and Professor of Law at Florida International University, and the Floersheimer Distinguished Visiting Professor of Law at Cardozo Law School.

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