To celebrate Constitution Day, Rhodes College recently invited Supreme Court Justice Antonin Scalia to discuss—and, presumably, praise—the United States’ charter of liberties. Instead of waxing poetic on the Constitution, however, Scalia seized the moment to pillory the court’s decision in Obergefell v. Hodges, which brought marriage equality to every state. Scalia criticized the ruling as “the furthest imaginable extension of the Supreme Court doing whatever it wants,” and said the question of same-sex marriage “has nothing to do with the law.” The Obergefell majority, Scalia claimed, rewrote the Constitution instead of interpreting it and operated as “policy-makers” instead of judges.
“Saying that the Constitution requires” same-sex marriage, Scalia opined, “which is contrary to the religious beliefs of many of our citizens—I don’t know how you can get more extreme than that.”
Scalia’s fulmination is interesting for two reasons. First, the justice is obviously attempting to undermine the legitimacy of Obergefell, painting it as an invalid decision with no real constitutional basis. His efforts seem designed to encourage lawbreakers like anti-gay Kentucky clerk Kim Davis, who are essentially demanding a special right to ignore the ruling. Clearly, Scalia learned a valuable lesson from his previous dissents in gay rights cases, which contained dark prophesies that ultimately hastened the fall of anti-gay laws. Instead of fretting over the expansive power of Obergefell, Scalia is now endeavoring to subvert and sabotage its validity as supreme law of the land. In his estimation, Obergefell wasn’t a lawful decision but a perversion of the rule of law. This casual calumny is certain to hearten the Kim Davises of the world, who were already eager to block the ruling’s implementation.
Second, Scalia has demonstrated, once again, that he is so blinkered by his own prejudice that he cannot spot rank hypocrisy even when it emerges from his own mouth. Few justices have been as prolific as Scalia in fabricating new constitutional rights. Scalia, after all, is the justice who vehemently endorses a concocted First Amendment right for corporations and plutocrats to spend unlimited sums of cash on electioneering. He also endorsed the court’s totally made up principle of “equal sovereignty,” a nonsense doctrine the conservative justices invented to strike down part of the Voting Rights Act.
Of course, Scalia’s finest moment as a constitutional fabricator arrived at the climax of Bush v. Gore, when he joined an opinion espousing the weirdest theory of equal protection ever expounded. Scalia does not believe that the Equal Protection Clause of the 14th Amendment protects gay people’s right to marry. But he does believe the very same clause protected Florida voters in the 2000 presidential election from being subjected to a recount. This recount, the court alleged, would somehow violate the “equal dignity owed to each voter” in Florida. To Scalia, then, the idea of equal dignity for same-sex couples is laughable—but equal dignity for Republican voters in Florida is a constitutional imperative.
The Constitution is a complex document whose grand, sweeping pronouncements demand reassessment in light of modern understanding. To Scalia, “freedom of speech” in the 21st century means the freedom to spend a limitless amount of money engineering the election of your favored candidate. To the Obergefell majority, “liberty” and “equal protection” in the 21st century mean no state can demean same-sex couples by barring them from the institution of marriage. Deciding these questions is the duty of a judge and the province of the judiciary. In his disparagement of Obergefell, Scalia isn’t just condemning the ruling itself. He is denying the Supreme Court’s power to make the Constitution’s most majestic promises a reality.