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The Problematic Legacy of Justice Scalia for the Future of Gay and Abortion Rights in America and Abroad

02/14/2016 07:12 pm ET | Updated Feb 15, 2016
  • Rajesh Sampath Rajesh Sampath is Associate Professor at the Heller School for Social Policy and Management at Brandeis University.

Yesterday the country and perhaps those who watch America's Supreme Court from abroad were shocked to receive the news about Justice Scalia's sudden passing. Of course, the initial reaction, as would be for any public figure in a peaceful and stable democracy, is the appropriate condolences to the surviving members of the Scalia family, which President Obama quickly extended. But as soon as the mourning began, the political debates intensified with a Republican primary debate in South Carolina the very same evening that the public heard the news about Scalia's death. And of course, the issue of President Obama's suspected intention to nominate a new justice was fiercely contested with Senator Cruz claiming, falsely, that no confirmation has ever taken place during an election year.

In this light, it's only expected that a flurry of legal historical works, opinions and editorials from major newspapers, and briefs from any institution that follows the history of SCOTUS will ensue. They will attempt to assess the long, complex and scintillating legacy of Justice Antonin Scalia. For us, two dissents stand out in particular: they reveal not only Scalia's mode of legal reasoning and argumentation but his deeply held moral and political convictions about gay rights in America, which he unabashedly made known, not only in public interviews but in blistering Supreme Court decisions.

The great irony is that Scalia was famous for defending the literal interpretation of the Constitution in protecting, say the Second Amendment on gun ownership, while critiquing judicial activism and overreach that would compromise the democratic liberty of citizens from governing themselves. It is not up to judges to tell Americans what to think or believe. Naturally, this could mean Supreme Court justices not allowing moral stances or polemic ideological positions to infiltrate the serene, neural, objective and fair interpretation of the law that is expected in Supreme Court decisions on major social issues. But this is exactly where some could argue Scalia's hypocrisy comes shining through, allowing for his own personal opinions on controversial subjects over the years, such as gay rights, to conceal itself within the constitutional rigor of his often times brilliant and powerful reasoning.

One major case from thirteen years ago illustrates the point. Take for example Lawrence v. Texas (2003) that overturned the last few states' anti-sodomy laws, thus effectively decriminalizing homosexuality across the nation. Justice Kennedy delivered the 6-3 majority opinion arguing that the anti-sodomy laws preventing sexual conduct between same-sex individuals violated the Due Process clause of the Fourteenth Amendment, which protects the privacy and liberty interests of citizens' decisions of utmost significance about their lives from undue government interference. There is no justification for state intervention in the most private dimensions of a citizen's life. Interestingly enough, the issue of whether same-sex individuals not being able to engage in a certain sexual practice, which for example heterosexual couples may practice, does not violate the Equal Protection clause of the Fourteenth amendment, or equality before the law. The decision came down to privacy and liberty interests as opposed to equality.

But this is where Scalia's dissent could have enormous import, particularly as other countries in the Global South reckon with old colonial laws that criminalize homosexuality. For example, India's Supreme Court recently decided to review its decision from two years ago that effectively re-criminalized homosexuality after a New Delhi court decriminalized it. And no doubt, these countries may take a look at the dissents put forward by conservative justices like Scalia before undertaking such a momentous decision for or against gay rights. Seeing that the U.S. expanded the liberty and equality of gay people to marry last year in Obergefell v. Hodges (2015), the stakes couldn't be higher for Global LGBTQ rights activists.

So what does Scalia say in the Lawrence v. Texas decision that decriminalized homosexuality in his staunch and vehement disagreement with the majority opinion? One can ask about the saliency it holds in terms of its constitutional credibility or whether it succumbs to unfounded moral biases that parade as legitimate given the charismatic voice Scalia represented on the Court for nearly thirty years until his unexpected death yesterday. The only question Scalia should have considered is whether free adults engaging in consensual sexual conduct should be spared any state interference in curtailing the kind and nature of such conduct. The constitutional matter of protecting privacy and liberty is what makes democratic freedom essentially a right to self-government, and not have government impose a moral or religious system upon individuals. This is much different from asking whether the conduct itself is morally or politically acceptable given the heterosexual majority's opinion on the matter over the course of American history.

Drawing upon the nation's "tradition," it is telling that Scalia invoked his dissent in Planned Parenthood v. Casey (1992) where he argued that abortion was not in the constitution as a fundamental right, which meant analogously neither is the right to same-sex people engaging in certain forms of sexual conduct. Examining Scalia's nearly twenty page dissent in Lawrence tells us much about the in-built constraints of government itself, the separation of powers, and how much power government officials, such as a Supreme Court justice, can actually wield. It raises the question of the ethical responsibility of non-elected government figures who occupy enormous positions of power to shape the social agenda of the country.

Arguing for the notion that states have an interest in rationally placing burdens on certain forms of individual liberty and privacy in the name of "tradition," and whether any future forms of social conduct are actually sanctioned in the literal text of the Constitution cannot be the overriding standard for legal judgement to determine the permissibility of such conduct, liberties and privacy. It's not so much the obvious fact that society changes while the constitution was only written once that makes Scalia's conservativism so calcified. Rather, his inflexible reasoning points to the utter impossibility to rethink the boundaries between states' responsibilities to protect new emerging liberties, say the legal right to transgender identity, also not written in the Constitution, and the fundamental right of individuals to be protected from laws that are unconstitutional, say the anti-sodomy laws on the remaining states' books before 2003 or current state laws that do not invalidate discriminatory practices against LGBTQ peoples when it comes to employment.

So much is at stake now as the political battle lines are drawn to contest or delay the confirmation of President Obama's eventual nomination to replace Justice Scalia. Seeing that the Court is planning to weigh in on major social issues in the near term, including abortion rights and affirmative action, one wonders whether the legacy of Scalia's conservatism, couched in the legal reasoning of the 'rational basis test' for states placing burdens on individual liberties, will itself stand the test of time. The binary logic of Scalia's pendulum is quite revealing: that citizens should legislate and vote on matters, say the limits of state interference in restricting abortion rights or whether gay people should have the right to marry, and not come from overreach of judges and courts deciding such matters. Yet this, when convenient from the moral argumentative point of view, can swing in favor of courts deciding on what should in principle be legislative and political matters in the name of precedent. Indeed for Scalia, it is the issues' intrinsic subject matter, say gay and abortion rights, which determines when literalism and traditionalism hold sway and when they don't. But that flies in the face of the independent and neutral nature of the judiciary as sanctioned in the Constitution itself.

Scalia's inchoate sense of "liberty," which itself presupposes a very specific idea of what democracy is all about, lies in direct contrast for those who argue for the expansion of the privacy and liberty of individuals to be free from government regulation. Just because democracies create laws to which citizens must abide in a social contract, does not make such laws constitutional in every instance, as in the case of Lawrence v. Texas whereby state laws forbade sexual conduct by same-sex peoples and tried to justify that prohibition in terms of legal doctrines. The possibility for freedom to expand over time, which many could argue is the only law in human history that seems to be self-evident, means that democracies should not fear the unexpected. What was seen as immoral or politically impossible in the past, say the right to gay marriage, does not mean it will continue to be seen that way in the future here or elsewhere. Scalia's memory may - literally - join the past his opinions and dissents did so much to defend when he was on the nation's highest Court.

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