THE BLOG
07/29/2015 05:52 pm ET Updated Jul 29, 2016

Respond to the Column That Was Actually Written

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The comments on my last column, "Scalia Gets It Pretty Much Right," are numerous and largely hostile. The substantive points at issue are discussed at length in the comments and I won't be revisiting them. Instead I want to talk briefly about some of the assumptions -- both explicit and implicit -- informing the strictures my critics offer. Here are some of them:

I am against same-sex marriage. I am for polygamy. I'm against polygamy. I bring up polygamy because I regard it as one of the disastrous consequences the Obergefell decision might lead to. I think that there is some equivalence between the same-sex marriage issue and the issue of conscientious objection. I am for limiting conscientious objector status to members of a traditional religion centered on a supreme being. My jurisprudential views coincide with Justice Scalia's. I am a far-right conservative.

As it happens, all of these assumptions are false. Having said that, I'm not going to tell you what I actually believe about any of these disputed matters or reveal my partisan affiliation. I'm not going to do that because my point in writing the column -- this one and most others I write -- is not to come down on one side or the other of a controversial question, but to analyze the arguments made by one or more of the parties to the controversy. After reading my analysis, you will not have the slightest idea of where I stand, although, if I've done my job, you will have a very good idea of what I think about the logic and coherence of the arguments I discuss.

The fact that I severely criticize one of those arguments cannot be taken as evidence that I am against the position it claims to validate. I could well agree with that position, even embrace it heartily, but think that this line of argument fails to support it or even undermines it. And, conversely, I could easily praise an argument (qua argument) offered to buttress a position I dislike or even despise. To make the point as plainly as possible, my views on gay marriage or polygamy -- and, again, you're not going to hear about them -- are independent of my views on the cogency of what has been said by the polemicists in the field. I'm not one of those polemicists. All I am saying is that Scalia's characterization of the Obergefell majority as being weak on law and strong on inspirational cheer-leading is correct; and given the reasoning that is front and center in Kennedy's opinion, there is no bar to legalizing polygamy.

In saying that, I have not committed myself to agreeing with any of Scalia's other opinions. One poster asked if I would say that Scalia's opinion in Heller, the gun control case, contained even a thin veneer of law. He assumed that if I was with Scalia here, in Obergefell, then I must be with him there. But I am on record saying that his reasoning in Heller was tortured and owed more to a strained parsing of dictionary entries than to the law or legal evidence. I am neither of the 'If Scalia says it, it must be wrong' school (to which many readers of the column seem to belong) nor the 'If Scalia says it, it must be right' school. To belong to either school would be to forsake analysis for ideology.

It comes down to what you want from a columnist. If what you want are opinions, you're not going to get them from me. I'm doing something else. And while it is perfectly okay to be uninterested in that something else and stop reading, it is not okay to respond to a column I did not write.

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.