Scalia’s Gay Rights Argument Catches Up With Him

A long-standing argument crumbles in the face of social change.

By Nathan Pippenger

It won’t get as much attention as his thesaurus-like repository of arcane insults, but Justice Scalia’s dissent in Obergefell v. Hodges features the culmination of an argument about gay rights and democracy he’s been advancing for decades. Last week marked the day when it finally caught up with him.

At the outset of his dissent, Scalia announced that he was writing “to call attention to this Court’s threat to American democracy.” The threat he has in mind is not the familiar, apocalyptic claim that marriage equality spells doom for civilization. Instead, it’s that the debate over same-sex marriage, which showcased “American democracy at its best,” has been prematurely ended by an arrogant Court which has decided the matter for the People, rather than letting them settle it themselves. “A system of government that makes the People subordinate to a committee of nine unelected lawyers,” Scalia concludes, “does not deserve to be called a democracy.”

Scalia’s been making this argument for years. It appears in his dissent in the 1996 case Romer v. Evans, which invalidated a Colorado constitutional amendment that banned the recognition of gays, lesbians, and bisexuals as a protected class. Characterizing the amendment as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority,” Scalia fulminated against the Court’s interference. In a line that could have come straight out of last week’s dissent, Scalia wrote: “This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.” He repeated the charge again in 2003’s Lawrence v. Texas: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means,” he wrote. “But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.” And again, in 2013’s United States v. Windsor, dissenting from the majority, which had just ruled the Defense of Marriage Act unconstitutional: “Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy.”

Scalia’s objection takes the form of a populist, majoritarian idea of democracy. But as Dahlia Lithwick notes, Scalia is decidedly selective about applying this logic to Court decisions: he displayed no such fretting about unelected justices imposing their will when those justices made an extremely unpopular decision in Citizens United. And when it comes to the merits of his theory, the decisive (and pithiest) rejoinder was delivered by Justice Kagan during Obergefell’s oral arguments: “We don’t live in a pure democracy, we live in a constitutional democracy.”

We could, in the spirit of generosity, ignore these two excellent rebuttals, and overlook the fact that Scalia’s objection is both inconsistently applied and, from a normative perspective, seriously deficient. (The brilliance of Kagan’s response is that she captured, in one sentence, the idea that Scalia is not only mischaracterizing our actually-existing democracy; he’s appealing to one that nobody would want to live in.)

At this point, one would be left with what amounts to an empirical claim: that same-sex marriage is an issue of ongoing debate, and the Court ruled before the debate was over. But even here, though, Scalia is on shaky ground—and not just because of the difficulty of defining when a debate has “ended.” (What’s the polling threshold we have to reach?) National support for marriage equality has surpassed 60%. The only age group among which it enjoys less than majority support is 65 and older—and even among seniors, it’s close. In only eight states does opposition still poll at 50% or higher, and majority support exists in every region of the country except the South. Even there, support has grown quickly over the last decade.

Undeterred by this massive realignment of public attitudes, Scalia continues to advance the same objections he did in the 1990s. And his charge of premature judicial meddling seems to have influenced some of his colleagues: in a separate dissent, Chief Justice Roberts warns that “there will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds.”

But this grim prediction could have been made of any of the Court’s pro-gay rights rulings over the last two decades (and Scalia often did make it). Support for marriage equality has surged along nonetheless. This is consistent with a recent study which found “significant evidence that public mood shifts toward the ideological position of the Supreme Court.” The backlash, in other words, is a long shot. And why should anybody be surprised? Just look at where public opinion has gone, and how quickly it’s still moving. Scalia’s dissent was full of lines echoing his complaints from almost two decades ago, as though nothing has changed. But there was an unexpected snag in his favorite argument: everything has.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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