Scalia and The War In the Supreme Court Over Gay Marriage

Guest post by Eric Zuesse.

Preface by Washington’s Blog:  Zuesse points out that some of Justice Scalia’s Catholic beliefs are in tension with his Constitutional convictions. Indeed, Scalia’s belief that American law should be based on strictly Judeo-Christian Biblical principles contradicts the tolerance which the Founding Fathers showed to other faiths.

This dichotomy might be resolved if Scalia’s statement that the Constitution must be “strictly construed” is interpreted not to mean that the Constitution of today, or as of the date the Bill of Rights was written, or even before the Bill of Rights … but that the Constitution should be interpreted according to his view of what Jesus and the authors of the Bible thought some 2,000 years ago. In other words, Scalia wants a Biblical construction of the Constitution.

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:

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 this 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).

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.

In other words, this member of the U.S. Supreme Court said that each Catholic’s commitment to his Church supersedes his obligations to his nation, and that therefore Scalia’s personal obligation to obey the Pope superseded the professional oath of office that Scalia swore to when he joined the Supreme Court, in which he promised to faithfully execute the Constitution of the United States of America. To him, there was a higher Law than the Constitution of the United States, and he must never do anything that would violate it.

He was thus exactly the opposite type of Catholic from John F. Kennedy, who made clear that dictates of the Pope had no bearing upon his decisions as the U.S. President.

Scalia even expressed the view that he would dread being compelled by circumstances to choose between these two commitments, and that those would all be “disastrous consequences” that he had described, but that, if the Pope were to rule ex cathedra against the death penalty, then this command would be absolutely binding upon not just himself but every Catholic, because, according to Scalia, Papal edicts transcend not only the believer’s individual conscience, but even his own nation’s laws and also the given Catholic believer’s personal sworn commitments.

In this speech, this Roman Catholic Supreme Court jurist interpreted the Church/State relationship in precisely the opposite way from JFK. During the intervening 40+ years after JFK, with the advent of President Reagan who appointed Scalia, the fundamentalist religious viewpoint had soared to become so mainstream in the U.S., that Scalia was able to say such things now without sparking massive public outrage.

To the contrary, practically no one at the time saw fit to remark at all upon Scalia’s speech; nor did the press do so. Clearly, the Church/State separation that was accepted unquestioningly in 1960 in America, had become actually alien to American political culture four decades later.

There wasn’t even any serious reaction to this speech among the scholarly audience who heard it delivered. Quite the contrary: The speech transcript (subsequently removed from the website of the Pew Forum, which hosted this speech) indicates that Scalia’s address was interrupted seven times by laughter from the audience. This joviality was in keeping with the speech’s style of camaraderie, which encouraged listeners to glide over the most serious things Scalia was saying. His scholarly audience seems to have been totally unaware – oblivious, actually – that they were listening to treasonous jurisprudential ideas from a member of the U.S. Supreme Court. But these assertions, by Scalia, in front of this audience of scholars, were nothing less than an advocacy of theocracy, coming from a U.S. Supreme Court jurist, duty-bound to enforce the U.S. Constitution.

It is further of interest that Scalia quoted, for authority on this grave matter, not the U.S. Constitution he swore to uphold when he first joined the Court in 1986, but instead, he quoted the Bible that he had learned to revere ever since his childhood. He quoted specifically the entirety of Romans 13:1-5. Scalia said that this biblical passage presents (which it unquestionably doesn’t) the basic theocratic position; namely, as Scalia put it, that “government, however you want to limit that concept, derives its moral authority from God,” and not, as Thomas Jefferson had claimed in the Declaration of Independence, “from the consent of the governed.” When the Declaration of Independence, with those precise words ringing in it, was unanimously adopted by the representatives of the thirteen founding colonies on 4 July 1776, the entire document became thereby an intrinsic part of the subsequent U.S. Constitution of 1787. Nothing in the Constitution contradicts the Declaration, including its statement that government derives its authority from the consent of the governed, instead of from any god, such as Scalia here insists.

In fact, the very opening words of the Constitution, the Preamble, tell us exactly upon whose authority the entire document rests: it’s not the authority of God; it’s not even the authority of the various states (such as Scalia’s Federalist Society asserts as a means of removing the authority of the people over the Federal Government). The opening words of the Constitution name “We, the people of the United States,” as the sole source of the document’s authority. The Preamble then immediately proceeds to itemize the purposes for which the Constitution and thus the entire Government of the United States serve: “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense,” and now come the two kickers, “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” (America’s government officials are told right there whom they are obligated to serve – “the people” – and how: these officials must “promote the general welfare, and …,” and they are not obligated to serve God or anything else.)  Then comes the Preamble’s close: “do ordain and establish this Constitution for the United States of America.” The clauses, “promote the general welfare,” and, “secure the blessings of liberty,” not only reinforce the opening “We the people” as the sole source of the Constitution’s authority, but they identify “the general welfare” and “the blessings of liberty” of these “We, the people” as the Constitution’s concerns.

These objectives not only exceed any for Scalia’s supposed “moral authority from God,” but they entirely exclude that: it’s not mentioned anywhere in the Constitution. (The European Union, when drafting Europe’s Constitution, would have been wise to have copied the U.S. Preamble word-for-word, only substituting “E.U.” for “U.S.A.” However, the Vatican and other conservatives, for obvious reasons, were determined to prevent any such Preamble. And the liberals, on the other side, knew nothing more than to propose the vague and virtually meaningless phrase “values underlying humanism” as their supposed guiding constitutional principle and thus the source of political sovereignty in Europe. America’s great Founders were light-years ahead of even the most advanced thinkers of our time, and were farther yet ahead of today’s American conservatives, who represent old England’s King George III, the man who was defeated by the American Revolution, so that today’s American conservatives are committed traitors to the U.S. Constitution and to the Founders who created it. The EU’s “Constitution” ended up as 300 pages of religious-liberal verbal clutter, without any authentic constitutional furniture; it’s just a philosophical waste-dump.) Scalia’s presumed source for the Constitution’s “moral authority” isn’t an overstatement; it is false.

Though Scalia asserts that the view that “government, however you want to limit that concept, derives its moral authority from God” was Paul’s view, he subsequently makes unequivocally clear that this is Scalia’s view as well: he says that he agrees with Paul, as he interprets Paul, on this important point. (However, his theocratic interpretation of Paul actually contradicts Paul. Paul insisted – e.g., Galatians 2:16, Romans 3:20-21&28 – that God’s Law is no longer binding. Romans 13:1-5 said that the temporal government must henceforth be obeyed as the lawmaker, instead of God. God’s Law is no longer binding; the ruler’s law now is binding. Galatians 3:24 said, “God’s Law was in charge of us until Christ came.” Galatians 5:1 thus said, “Christ has set us free!” This was/is freedom from the Ten Commandments and all the rest. Paul was anti-theocratic. Scalia falsifies the Bible, just as he falsifies the Constitution he’s paid by the American people to apply.)

Scalia repeatedly states that there must be “resolution to combat” what he calls the “tendency of democracy to obscure the divine authority behind government.” He declares his war against democracy not only implicitly, but also explicitly, by saying: “The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it but resolution to combat it.” This is incitement to “combat” democratic, non-theocratic, government: government answerable to the people, instead of to any “god.” Scalia here recognizes the anti-theocratic “tendency of democracy,” and he even seems to recognize that this “tendency” is inherent in democracy, but he doesn’t acknowledge the hard fact, which is that instead of being only a “tendency,” this is the very heart and soul of democracy. Just as democracy was encapsulated by the Declaration of Independence’s assertion that “governments are instituted among men, deriving their just powers from the consent of the governed,” theocracy is likewise encapsulated by Scalia’s assertion that “government, however you want to limit that concept, derives its moral authority from God.” What Scalia asserts to be a “tendency” of democracy, is democracy itself.

In other words, against the men who wrote the Declaration of Independence and the U.S. Constitution, Scalia, in this speech, declares himself to be at war, and is urging others to join him to “combat”; it is against – not for – the original intent of the U.S. Constitution, that this self-declared “constitutional originalist” is waging his popular battle, and is even intellectually rabble-rousing his treason.

This Supreme Court jurist’s company whenever he does this isn’t really America’s great Founders at all, such as he falsely claims (and against whom he is actually at war), and his company in this isn’t even Paul – who went to such pains to separate Law from God – but his company is instead other theocrats like himself, people who, as Scalia might proudly note, come from many different faiths, a diverse lot, such as Jerry Falwell, Pat Robertson, Osama bin Laden, Ayatollah Khomeni, Meir Kahane, Baruch Goldstein, and all other such theocratic religious fundamentalists, in every faith. Scalia has ecumenical company: theocrats everywhere. The U.S. President who idolized him, King George II – Scalia’s admirer, whom Scalia in turn admired enough to have been instrumental in having appointed him on 9 December 2000 to become the U.S. President – was part of that company, as is any extremist conservative.

In order to understand the depth of their anti-Americanism, perhaps the best single book – profound, brilliantly written, and comprehensive regarding the origins of the First Amendment, and perhaps the finest work ever published concerning the original intent of America’s great Founding Fathers and thus the U.S. Constitution – is William Lee Miller’s magisterial 1985 The First Liberty: Religion and the American Republic. If that history, together with the oath Scalia took to join America’s highest court, define the meaning of patriotism in the United States, then the comments of Scalia at the University of Chicago, expressing his commitment to “combat” that, reflect necessarily the opposite: the ancient, aristocratic, Church-State-bonded, system of government, against which the American Revolutionaries warred.

Coming from a member of the U.S. Supreme Court, it is not just a violation of oath-of-office, it’s outright treachery. This is not protected by the First Amendment, if advocating the undemocratic, even theocratic, war to “combat” the democratic U.S. Government is not. Especially is it treachery when it comes from a member of the U.S. Supreme Court. Such intellectual incitement, with a big audience on the growing far right, exacerbates Scalia’s violation of both the Constitution and his oath of office; this man is no mere flop-house vagrant (such as, for example, Adolf Hitler had briefly been, prior to his having become dangerous, carrying out “God’s Law” as he saw it to be); he has managed to be appointed as a very important part of the same democracy he now seeks to overthrow and replace – important enough to be able, in turn, to appoint America’s President, and to have actually done so on 9&12 December 2000.

Consequently, this Supreme Court jurist, whom America’s all-time-longest-poll-topping-popular President Bush said is the greatest of all U.S. Supreme Court jurists, is passionately, even if secretly (and he would always deny it publicly), committed to overturning and desecrating the very same democratic Constitution that he has taken a grave oath to uphold and defend as a member of this Court. And he already had plenty of company on the Court; not only Clarence Thomas followed his lead, but usually the Chief Justice, William Rehnquist, did as well; Rehnquist, in fact, who was appointed by both Republican Presidents Nixon and Reagan, had a record that some deemed to be the most conservative record on the court, slightly to the right of Scalia, who was solely a Reagan appointee. Thomas is an appointee of the senior Bush. Justices Sandra Day O’Connor and Anthony Kennedy, two other Republican appointees, usually joined with these three in rendering conservative opinions “interpreting” (often simply shredding) the U.S. Constitution. (All five of these theocratic “Justices” joined together to appoint King George II to the Presidency on 12 December 2000, the most scandalous dark day in American history, as is documented in their fellow Republican Vincent Bugliosi’s definitive 2001 The Betrayal of America.)

Furthermore, during oral arguments (to be found at www.lc.org/attachments/Van-Orden-Transcript.pdf) on the case heard 2 March 2005 regarding the posting of the Ten Commandments at a Texas courthouse, Van Orden v. Perry, Scalia asserted that posting the Ten Commandments there was “a symbol of the fact that government comes – derives its authority – from God. And that is, it seems to me, an appropriate symbol to be on State grounds.” He said, “Monotheism is shared by a vast majority of the American people. And our traditions show that there is nothing wrong with the government reflecting that.” (Whenever Scalia cannot find a way to justify a legal opinion on the basis of the U.S. Constitution – which is supposed to be the basis for a Supreme Court Justice’s legal reasoning – he usually refers to “our traditions” as being the basis, and this phrase refers actually to the Scripture of his own Roman Catholic faith, thus baldly violating both his oath of office and the First Amendment.) He said that this monument of the Ten Commandments symbolized “the fact that our laws are derived from God,” and he asked, “Isn’t [the truth of] that symbolism sufficient [reason] to enable the State of Texas to use it [that monument]?” He expressed bitter disappointment at the argument being used by the proponent of this monument, charging him: “You’re watering it [your case] down to say that the only reason it’s okay [to keep the monument there] is it sends nothing but a secular message,” and he proclaimed, “I can’t agree with you. I think the message it [the monument] sends is that law is – and our institutions come – from God.” He imposed from the bench his theocratic philosophy that he had stated on 25 January 2002, and he accused the monument’s proponent: “I really would consider it something of a Pyrrhic victory if you win on the ground you’re arguing.”

Though Scalia’s assertions were to the effect that the United States is and must remain a theocracy, none of the other jurists disagreed with this outrageous view, and some even seemed to share his anti-Constitutional opinion. However, some appeared to favor instead considering the posting of the Ten Commandments at a courthouse to be mainly a secular statement – this being the liberal religious view, which the fundamentalist Scalia ridiculed. In fact, when the opponent of the monument asserted that America’s laws against murder are secular, Scalia asked, “Who are you kidding? I mean, everybody knows that comes from the Ten Commandments.” No one expressed disagreement with this assertion, either, even though it too is false, even a lie about the U.S. Constitution. According to the Preamble, the nation’s statement of sovereignty, the Constitution’s own Sovereignty Clause (though lengthier than most “Clause” passages in the Constitution are), all of America’s laws come from Man, and Man alone – specifically from Americans – not any come from the god of any religion, Judaic or otherwise. Every culture, even prior to Judaism, has legally defined, delimited, and prohibited, murder; and the U.S. Constitution nowhere attributes to the Bible and the biblical God its authority regarding anything – including murder. Nothing in the U.S. Constitution claims to come from any “god.” Yet Scalia’s anti-Constitutional assertions to the contrary went entirely unchallenged – in the U.S. Supreme Court!

The predominant view seemed to be expressed by the Republican jurist Anthony Kennedy, that anyone in the minority who doesn’t like to see the Ten Commandments posted at a courthouse can simply “avert his eyes,” and must be “an atheist,” not even possibly a believer in a different religion. (And Kennedy was there implying that “an atheist” doesn’t possess the same rights as anyone else in this country.) Kennedy said that in “this area, … there is this obsessive concern with any mention of religion. That seems to me to show a hostility to religion.” Like Scalia, he viewed the Ten Commandments as representing not specifically Judeo-Christian Scripture, but all religions, which also is historically false.

No one disagreed with that falsehood, either, even though this falsehood presumed that opponents of posting the Ten Commandments at courthouses could only be atheists, who have “a hostility to religion.” Scalia went so far as to “correct” the lawyer who was arguing to remove the Ten Commandments from the courthouse, by saying, “I thought Muslims accept the Ten Commandments.” After he was then corrected, in return, by that lawyer’s saying, “No, your honor, the Muslims do not accept the sacred nature of the Ten Commandments,” Scalia immediately distracted from this exposure of his own bigotry and ignorance of the world’s other leading faith, by means of a jocular comment, to which some unidentified person laughed. It was clear that Kennedy shared Scalia’s inference that this particular lawyer could only be an atheist. Scalia now is relying upon Kennedy’s bigotry, as the strongest card in Scalia’s hand, regarding Hollingsworth v. Perry.

Given the obvious pro-religious, and even narrowly Christian, prejudices of this judicial panel, Kennedy’s statement against atheists, in Van Orden v. Perry, was marginalizing that lawyer, in such bigoted company. In fact, Kennedy’s complaint against those who have “a hostility to religion” sounded similar in sentiment to Scalia’s earlier expressed complaint against the “tendency of democracy to obscure the divine authority behind government,” which this legal petitioner seemed to represent here. Two bigots on the bench were bonding.

And Scalia went on to repeat his theocratic theory of U.S. jurisprudence later the same day, when a similar case, #03-1693 (McCreary v. ACLU), was heard. Scalia said there that to assert that “the proposition that the moral order is ordained by God,” and also “that that’s the basis of the Declaration of Independence and of our institutions [including the U.S. Constitution], is entirely realistic.” He again supported the government’s posting the Ten Commandments, because “What the commandments stand for is the direction of human affairs by God.” This is 100% theocracy. He acknowledged, “You can’t get the Declaration of Independence out of the Ten Commandments,” but asserted, “I think what they’re saying is the principle of laws being ordained by God [and that this] is the foundation of the laws of this state and the foundation of our legal system,” which he held to be true, even though it’s very importantly historically false. He was there stating that America’s laws regarding murder must comply with the Bible, even above the U.S. Constitution – this was a direct extension from what he had said (and argued more extensively then by his lengthy but false interpretation of Romans 13:1-5) in his speech of 25 January 2002.

Again, no other jurist expressed disagreement with this outrageously false and outright treasonous view from a Supreme Court jurist. America’s great Founders, the authors of our Constitution, would have just turned over in their graves.

George W. Bush himself said, only a few months after Scalia’s 25 January 2002 University of Chicago speech, on June 27th, that the urgency to keep the words “under God” in the Pledge of Allegiance “points up the fact that we need common-sense judges who understand that our rights were derived from God.” This treasonous President went on to say that, “The declaration of God in the Pledge of Allegiance” is itself “a confirmation of the fact that we received our rights from God, as proclaimed in the Declaration of Independence.” One can hardly wonder, then, why Bush admired Scalia, above all other jurists. Indeed, as the AP reported, on 22 November 2004 (headlining “Scalia Says Religion Infuses U.S. Government and History”), Scalia told congregants at a synagogue that (as the AP paraphrased it) “official examples of the presence of faith” in America’s Government “go back to America’s Founding Fathers: the word ‘God’ on U.S. currency; chaplains of various faiths in the military and the legislature; real estate tax-exemption for houses of worship – and the phrase ‘under God’ in the Pledge of Allegiance.” If Scalia actually did assert such things, then he was either a liar, or terribly ignorant. For example, “under God” in the Pledge of Allegiance didn’t precede 1954. Could a U.S. Supreme Court “Justice” really be so ignorant, as that?

Such treasonous views are accepted in the U.S. because the nation’s culture had transformed during the two centuries since its founding. Thus, on 29 July 2006, The New York Times headlined “Families Challenging Religious Influence in Delaware Schools,” and Neela Bannerjee reported on how the lone Jewish family in a small Delaware town had finally, after 30 years, become fed up with officials of the local public school routinely introducing Christian admonitions, and “a minister’s prayer proclaiming Jesus as the only way to the truth,” so that the parent, Mona Dobrich, requested the “school board to consider prayers that were more generic and, she said, less exclusionary.” She wasn’t interested in protecting the rights and equal-protection position of atheists or agnostics, but only of herself and her child, and yet, “As news of her request spread, many local Christians saw it as an effort to limit their free exercise of religion, residents said. Anger spilled onto talk radio, in letters to the editor and at school board meetings attended by hundreds of people carrying signs praising Jesus.” She sued the local school district, and, due to threats by the mob, moved her family away to a large city. A few other non-Christian families in this small town anonymously joined her lawsuit, terrified by the reigning bigotry they were experiencing, and condemning “the pervasiveness of religion in the schools and seeking financial damages,” as well as “alleging proselytizing in the schools and the harassment of their daughters.” But the local majoritarian bigots persisted, and continued assuming that it was not for themselves to have to send their own children to religious private schools of their choosing and to pay privately for doing so if they wished religious indoctrination to be imposed by the school their child attended, but rather for minority families to have to pay privately for the privilege of avoiding being proselytized at their own and other taxpayers’ expense. To the vast majority of these local Delawareans, the U.S. Constitution protected only themselves and their co-believers, and gave them and their co-believers the right to abuse and exploit any minorities. However, this was the way of Serbia, Lebanon and Iraq – not of the United States of America, according to the U.S. Constitution. Conservatives everywhere are the same, and conservatism had been soaring in America: it’s hostility to the Constitution, and to the nation for which it stands.

On 14 April 2009, Adam Liptak headlined in The New York Times, “Reticent Justice Opens Up to a Group of Students,” and reported on Scalia’s fellow far-Right jurist, Clarence Thomas, “reminiscing fondly about seeing ‘a flag and a crucifix in each classroom.’” If the basis of the law is morality, and the basis of morality is one’s personal religion (whatever that happens to be), then Christ and the crucifix will naturally be the actual “constitution” a devout Catholic such as Clarence Thomas will place at the basis of all our laws, even if this violates the oath of office he took in order to win his post. Thomas, also naturally, agreed with Scalia on almost all Supreme Court decisions.

Scalia stated his very influential supposed “theory” of Constitutional jurisprudence in his 1997 A Matter of Interpretation: Federal Courts and the Law, in which his view was also debated by a few legal theorists. Scalia said that his way to understand the Framers’ original intent wasn’t to examine the discussions they or the public had had at the time that led to the clause which is now being interpreted, but instead to examine only the way that the particular clause was understood and interpreted by the public in its own time, however burdened by pre-democratic and now-archaic cultural prejudices (especially by religious preconceptions) this might be. He openly asserted his personal deference to cultural traditions, especially to old ones; and he thereby repudiated the revolutionary character of the U.S. Constitution and of the American Revolution that had led to it. He asserted that democracy consists of majority-rule, and that any protection of the rights of a minority from encroachments by the majority should therefore be allowed only to the extent that the Constitution (as understood at the time by the public) unambiguously asserted such a minority right. (Like any extreme conservative, or fascist, he was viscerally against minority rights, especially when religion was involved.) His essay ignored all Constitutional provisions (such as the Preamble, the Constitution’s Sovereignty Clause) that contradicted his theocratic prejudices. As Ralph A. Rossum subsequently noted in his internet-posted essay “The Textualist Jurisprudence of Justice Scalia,” Scalia’s doctrine became so influential that Senators and Representatives were now widely being guided by it in their drafting of laws. No one publicly pointed out the false, and even treasonous, aspects of Scalia’s theory of Constitutional jurisprudence. It won the day, because of the victory of conservatism in U.S. political culture after 1980 – the Republican dominance that has cursed this country since 1980. Liberals, being merely diluted conservatives, many of whom themselves were religious, had nothing to offer in the way of any theoretical alternative to Christian theocracy – they just wanted it to be “liberal.” (Maybe “Sermon on the Mount” passages, instead of the ones favored by Republicans.) A highly organized aristocratic movement exists in the U.S., which agrees with Scalia about the moral authority of government coming from the Lord above, instead of from the people below.

As inJustice Scalia so subtly phrased the matter during his 25 January 2002 speech at the University of Chicago: “It is easy to see the hand of Almighty God behind rulers whose forebears, deep in the mists of history, were mythically anointed by God, or who at least obtained their thrones in awful and unpredictable battle whose outcome was determined by the Lord of Hosts; that is, the Lord of Armies. It is much more difficult to see the hand of God or of any higher moral authority behind the fools and rogues – as the losers would have it – whom we ourselves elect to do our own will.” The electorate, to Scalia, is composed of “fools and rogues” who vote for “fools and rogues.” Of course, his contemptuous “we” was intended to refer, with only a fake modesty, to himself; but actually to such people as had only recently voted for the “fool” or “rogue” Al Gore, whose candidacy Scalia himself had terminated barely more than a year earlier, in 2000, and certainly not to theocrats like Scalia himself – who knew better than to do such a thing as to vote Democratic (or to validate the votes from the people who did). That statement, of faith in The Almighty, instead of respect for democracy and commitment to Scalia’s own oath-of-office, expressed extreme hostility against what America’s great Founders had established, and Scalia exhibited his determination to do whatever he could to destroy their handiwork. Scalia reflects feudal values, the values that America’s Founders waged war against and defeated.

The war within the Supreme Court is between theocrats such as Scalia, whose ideology is actually treasonous theocracy, versus liberals, who don’t have any ideology at all, and who are therefore unable coherently to defend the U.S. Constitution against the theocratic assaults on it coming from the other side of the Court.

Scalia is relying upon there being enough such traitorship still at the Court, for him to be able to win the day on Hollingsworth v. Perry. He is playing a desperate game, and the question is whether Anthony Kennedy, who has written some things on the opposite side of it, will cast that aside and now go all-in for feudalism, or instead join the liberals on this and just kick this can further down the road. I predict the latter: a technicality will be found to avoid ruling on the Constitutionality of bans against gay marriage. Maybe the group that is bringing the case will be determined not to have legal standing to do so.

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Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.

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