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Scalia and The War In the Supreme Court Over Gay Marriage

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Adam Liptak delivered, in The New York Times, on March 29th, one of the finest analyses that has ever been provided in a news report concerning the inner workings of the U.S. Supreme Court, and he presented Antonin Scalia as the Court's bulldog against gay marriage.

Headlining " Who Wanted to Take the Case on Gay Marriage? Ask Scalia ," Liptak concluded that the only member of that Court who has been unhesitatingly wanting the Court to rule on the constitutionality of gay marriage is Scalia, and that the reason is that Scalia thinks that the Court is only going to be becoming more liberal, not more conservative, from now on.

Liptak explains why the Court's other four Republicans -- Thomas, Alito, Roberts, and Kennedy -- might not have wanted to render a decision "on the merits" in this important case (Hollingsworth v. Perry), but Liptak concludes that Antonin Scalia definitely did want to rule "on the merits," or on the constitutionality of gay marriage; and here is Liptak's key passage on that:

"The aha moment came on Tuesday. After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. "It's too late for that now, isn't it?' he said, a note of glee in his voice. "We have crossed that river,' he said."

Liptak then goes on: "That was a signal that it was a conservative grant," which had been made back in December to hear this case. Liptak explains that in order to hear a case, at least four justices must vote to hear it, but that in order to win a case, at least five justices must vote in favor of a given verdict concerning it. Liptak also explains why he thinks that the other at-least-three justices who joined with Scalia in December to hear this case were his fellow Republicans, and not the Court's liberals: "That theory was demolished in the courtroom [on Tuesday] as one liberal justice after another sought to find a way to avoid" ruling on the merits. Consequently, the prospects for a ruling that gay-marriage bans are unconstitutional would appear to be slim.

Liptak also proves, by analyzing Kennedy's statements during oral arguments on Tuesday, that at least Kennedy doesn't want to rule on the merits on this case. In fact, the "aha moment" was the very moment when Scalia basically told Kennedy that there is going to be a ruling on the merits, regardless of whether Kennedy wants to or not. Scalia was essentially telling Kennedy there, in effect: "Either you will be joining with us in a verdict that the Equal Protection Clause does not extend to gay marriage, or else you will be joining with the Democrats to kick that can farther down the road and have it become lost in the coming liberal jungle."

Scalia, in other words, is betting that, when forced to do so, Kennedy will join his side in (and will probably even write [so as to give Kennedy even more motive to join him in]) the Court's verdict, saying that the last decision in the case, by Judge Vaughn Walker of the U.S. District Court for the Northern District of California, was in error when it concluded that the Equal Protection Clause applies to or includes any right of homosexuals to marry each other.

Beyond the analysis by Liptak, I shall go further and predict that Scalia will be disappointed; and here is the reason why:

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Judge Walker's ruling, saying that the Equal Protection Clause does apply, was very carefully crafted upon the basis of previous rulings by Justice Kennedy.

Here is the way that wikipedia sums that up:

"Professor Doug NeJaime of Loyola Law School noted that Judge Walker's decision was crafted similarly to the standard used by Justice Kennedy in his decision in Lawrence v. Texas, and suggested that Walker was 'speaking' to Kennedy, who is commonly the swing vote on the Supreme Court.[91] John C. Eastman, a law professor who supported Proposition 8, agreed with Professor NeJaime's assessment. Barry McDonald, a constitutional law professor at Pepperdine University, believed that Walker's strict handling of the case and meticulous evidence gathering would 'make it more difficult for appellate courts to overturn this court's ruling.'[92] 'Only a trial court [like Walker's] can make factual findings,' lawyer Brian DeVine said in an analysis. He further noted that 'a Court of Appeal must give great deference to the factual findings of the trial court', and praised Walker 'for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court'.[93] Andrew Cohen, CBS's legal analyst, questioned the defense team's [the anti-gay-marriage group's] decision to 'cede so much ground at trial to their opponents' and called 'inconceivable' their gamble that the conservative Supreme Court might 'save the day'."

However, this presents the very puzzling question as to why Scalia wants to place Kennedy into this trap, forcing him to rule on the merits, since Kennedy would have a hard time repudiating any of his own prior rulings (which explains why Kennedy wants to avoid ruling on the merits).

I have previously addressed that issue indirectly by documenting that Scalia is a bigot: In other words: he clearly hates homosexuals, he outright despises them, and he fears that the longer that a decision on the merits regarding gay marriage is postponed, the less will be the chances that this bigotry will be read, by the Supreme Court, into the U.S. Constitution that Scalia craves to rewrite ("interpret") embodying his biblically based bigotries (including bigotry against homosexuals).

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However, that, in turn, raises the question regarding why Scalia would hate homosexuals, and how he could possibly believe that his hatred is permissible to reflect in his legal decisions on the U.S. Supreme Court, whose decisions are supposed to be based instead upon the Constitution. As it turns out, Scalia has talked a great deal about that, though mostly outside the Court itself.

On 25 January 2002, during a conference on the death penalty, at the Divinity School of Scalia's former employer the University of Chicago, Scalia (as subsequently was published at http://www.firstthings.com/article/2007/01/gods-justice-and-ours-32 ), stated repeatedly that he saw his Supreme Court function as being to interpret the U.S. Constitution in its original meaning, so long as this meaning is consistent with the Bible and with the edicts of the Roman Catholic Church, of which he happens to be a proud devotee, which religious belief on his part is, of course, his protected personal right as an American, guaranteed to him under the First Amendment to the Constitution -- but not as his right to embody biblical bigotries in his professional work interpreting the U.S. Constitution.

Scalia's remarks implicitly passionately endorsed the death penalty, though he explicitly denied that he was doing so, by saying, "I am judicially and judiciously neutral on that point." However, regarding the death penalty, he expressed his personal sense of relief as a Catholic, at the "non-binding" nature of his Pope's encyclical Evangelium Vitae against the death penalty, and he said that if the Pope had instead chosen to repudiate the death penalty ex cathedra, so as to "proclaim it as an article of faith," instead of so "that " it need not be accepted by practicing Catholics," then not only would "American Catholics running for legislative office" be morally obliged to "oppose the death penalty," and not only would "American Catholics running for governor" have to "promise commutation of all death sentences," but "American Catholics" and not only Scalia himself, would be "ineligible to go to the bench in all jurisdictions imposing the death penalty" -- no Catholic lawyers or judges (such as himself) would be able to participate in death-penalty cases.

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