In a New York Times op-ed (co-authored with law professor Eric Segall), Posner purports to extract the logical consequences of the positions that Justice Scalia has espoused regarding last term’s marriage ruling in Obergefell v. Hodges. But rather than fairly present Scalia’s positions, Posner resorts to the cheap debater’s trick of setting up and knocking down a bunch of straw men.
Let’s run through them (in a slightly different order than Posner presents them):
1. In his dissent in Obergefell, Scalia writes, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Quoting this passage, Posner contends that the “logic” of Scalia’s position “is that the Supreme Court should get out of the business of enforcing the Constitution altogether.”
But Scalia, in his Obergefell dissent, makes crystal-clear that he is not contesting the Court’s authority to enforce rights that actually are in the Constitution. (See, e.g., slip op. at 3.) What he objects to is that the Obergefell majority is making “a naked judicial claim” to unconstrained power to concoct any new liberty it favors, no matter how untethered to—indeed, contrary to—the Constitution’s text and our constitutional tradition.
One might, of course, disagree with Scalia’s assessment of the majority opinion (though one would be wrong to do so.) But for present purposes the relevant point is that no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks.
2. In a recent speech, Scalia stated (according to this account) that “Saying that the Constitution requires [same-sex marriage], which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” Posner somehow extracts from this statement the “suggestion that the Constitution cannot override the religious beliefs of many American citizens,” and charges that Scalia holds a “political ideal [that] verges on majoritarian theocracy.”
Like many unscripted remarks, Scalia’s statement is (at least in isolation from its fuller context) not a model of clarity. But his phrase “contrary to the religious beliefs of many of our citizens” is susceptible to either or both of two sensible readings. First, Scalia might be referring to the many “serious questions about religious liberty” that the Chief Justice’s dissent (which Scalia joined) explains that Obergefell creates. Second, he may be objecting to the Obergefell majority’s position that citizens with religious beliefs about marriage are somehow disentitled to support laws that accord with the moral propositions that their beliefs inform.
By contrast, there is nothing in Scalia’s long record that remotely supports the notion that he believes that “the Constitution cannot override the religious beliefs of many American citizens.” Posner’s claim to the contrary—which is the centerpiece of his op-ed (which is why it’s titled “Justice Scalia’s Majoritarian Theocracy”)—is scurrilous.
3. Posner complains that recent remarks by Scalia that read the Establishment Clause to require that laws be neutral between different religions but not between religion and irreligion somehow support the “implication” that “if a majority of Americans reject same-sex marriage on religious grounds, the Supreme Court must bow.”
Well, Scalia is either right or wrong about what the Establishment Clause requires (I think he’s right), but his proposition obviously has no reach beyond the Establishment Clause.
Does Posner mean to suggest that he (Posner) holds the crazy position that laws that define marriage as the union of one man and one woman violate the Establishment Clause if they’re supported by some quantum of Americans whose support for such laws is informed by their religious beliefs? If so, laws against murder also violate the Establishment Clause.
4. Posner contends that Scalia recently “argued that there is no principled basis for distinguishing child molesters from homosexuals” as minorities deserving of protection. But what Posner elides is that Scalia actually argued that there is no principled basis in the Constitution for courts to confer rights on the latter but not the former. That’s exactly the point that he made in his 2003 dissent in Lawrence v. Texas.
5. Posner faults Scalia for pointing out that (in Posner’s paraphrase) “state and local officials who are not actual parties to Supreme Court cases have no obligation to obey judicial rulings that those officials think lack a warrant in the text or original understanding of the Constitution.” Posner concedes that what Scalia says is “technically true.” But noting that Scalia cited Lincoln on Dred Scott, Posner observes that “few Americans will agree with Justice Scalia that Obergefell, which conferred rights on millions of Americans, is comparable to Dred Scott, which denied right to millions by ruling that slaves were not citizens and could not sue in federal courts.”
Posner’s observation is a smear and a distraction. Scalia has never contended that the effect of Obergefell is “comparable” to the effect of Dred Scott. On the contrary, his Obergefell dissent minimizes the “adverse social effects” of same-sex marriage as “no more adverse than the effects of many other controversial laws (as Posner would know if he made it through the second paragraph of the dissent). In citing Lincoln on Dred Scott, Scalia is simply invoking the most famous instance of the principle that he is advancing.
Posner also suggests that Scalia would not want his own decisions to be ignored by state and local officials. That’s surely true, but it says nothing about the merits of the principle that Scalia is advancing. Further, it’s entirely coherent for Scalia to believe that the propriety of such action by state and local officials turns on the soundness of their constitutional judgments.
In sum: yet another contemptible performance by Posner.