Marriage equality (
by Steve Timmer
Jun 27, 2015, 8:00 PM

Stamping out pockets of resistance

Please see the recent update 10/4.

From the majority opinion in Obergefell v. Hodges, the gay marriage decision:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

That’s Justice Anthony Kennedy.

But not so fast, says dissenter, Justice Antonin Scalia. Scalia does think believe that the drafters of the 14th Amendment did know the extent of freedom in all of its dimensions. And the rest of you can go suck an egg. Including Justice Kennedy.

Most of you have already read some of the outrageous things written by Justice Scalia in his dissent, but here are just a few.

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.”

This is a statement of Justice Scalia’s originalism. Anybody who disagrees his view of constitutional interpretation is obviously stupid.

And consider this:

“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.”

Coming from Justice Scalia, of course, this is truly funny, and one of the least-self aware statements written by a Supreme Court Justice in the history of the Republic. But the spittle-flecked Scalia is just getting warmed up:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Boy, no hubris in that guy, none at all. I’m sure there are other members of the Court who would help you with the bag, Tony — preferably plastic — and maybe secure it with a little tape, too.

Chief Justice Roberts was more measured in his tone — maybe not wanting to share a bag with Tony — but he wrote essentially same thing: the decision had nothing to do with the Constitution.

The role, though, of Scalia and Roberts, and Alito and Thomas, too, is not as mere dissenters of an opinion, or critics of its logic. They’re the leaders of the resistance, Nathan Bedford Forests in black robes, not white ones.

They’re leading the charge for nullification of the Court’s opinion, through their dismissive, taunting, bird-flipping rhetoric. I don’t recall ever reading such bilious and puerile dissents.

But a lot of people will pick up the cudgel from these four. Bobby Jindal, Rick Santorum (Google it), Ted Cruz, and Mike Huckabee already have. Sure, you say, they’re all just fishing in the shallow end of the gene pool for votes in the Republican primaries, especially in the South.

But it isn’t just the vote hucksters, it’s state officials, too.

One of the fathers of nullification and interposition was John C. Calhoun, who I wrote about a few days ago. And Greg Abbott sounds just like him. But instead of just being a self-important blowhard, Abbot’s a self-important blowhard with a Twitter account.

Practically the entire history of this country, from tariff nullification, to the civil war, to Reconstruction, to civil rights and interracial marriage, the ACA and now to gay rights, can be defined as a string of demagogic leaders pandering to the impulses of grievance and resentment, especially in the South, where it finds a ready audience.

“This is who we are,” says Lindsay Graham of the rebel battle flag. It’s our heritage! Yes, a vile heritage of slavery, white supremacy, treason, and titanic adolescent oppositional disorder.

It wouldn’t be so bad — well, really, it would — if the region wasn’t such a giant suckling at the federal teat.

But as is often the case, it is taking me a while to get around to the point: This isn’t over.

Greg Abbotts all over the country are going to oppose this decision, just as Wallace and Maddox opposed integration (the latter was called “just an ignorant plow boy” by Louis Armstrong). Scalia and Roberts gave them the language to do it.

It is going to take legal action after legal action, federal contempt proceeding after proceeding, and maybe even the national guard here and there before Obergefell is truly the law of the land. And it will fray the fabric of the Republic.

I think this is exactly what the poisonous Antonin Scalia has in mind.

Update: And right on schedule, RedState calls for disobedience of the decision, saying it’s a war on Christians, now. What bloated, overheated baloney. The comments are great, too.

Further update: And if you had any doubt:

Referring to Think Progress.

And yet a third update:

The Hon. Kevin Burke, a district court in Hennepin County, penned an op-ed about the role of judges in “reinvigorating” public trust in the judiciary. He had some pointed words for Justice Scalia and his opinion in dissent in Obergefell:

Many question the decision of the U.S. Supreme Court to prevent discrimination against gay people who wish to get married. But Justice Antonin Scalia helped undermine the public’s trust when he gave a speech where he called the majority’s decision the “furthest imaginable extension of the Supreme Court doing whatever it wants.” Scalia said that the Supreme Court was made up of no more than “lawyers” who are “terribly unrepresentative of our country.” He spoke dismissively of the Supreme Court’s East Coast, Ivy League, New York City composition, calling the court a “select, patrician, highly unrepresentative panel of nine.”

Scalia used pretty tough language that echoed his dissent when he accused the court of being a “threat to democracy” and the justices he disagreed with as the “Ruler of 320 million Americans coast-to-coast.”

Unbridled language like this reinforces the idea that judges simply do whatever their personal or political philosophy dictates. But before you conclude that this is just about Scalia, it is not: Every judge has the potential to wreak havoc on the public’s trust in the judiciary.

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