The Supreme Court’s recent decision in Bostock v. Clayton County can be described as “the war of the textualists” in that both the majority opinion by Justice Neil Gorsuch extending federal prohibition of job discrimination to non-hetero folk and the “stinging” (I guess, because I haven’t read them) dissents by Justices Brett Kavanaugh and Samuel Alito cite the great granddaddy of textualism, Antonin “Nino” Scalia in framing their arguments. Which I find a little amusing, because I find it hard to believe that Il Nino would let a little thing like intellectual consistency get in the way of getting the result he wanted. At least, he never did so when he was alive. And, certainly, the last thing Nino wanted was anything that would further the “so-called homosexual agenda”, as he liked to call it, with near-infinite disdain.
That said—and, actually, I’ll have more to say—I have to admit that Nino did strike at least one blow for homos, when he wrote the unanimous decision for Oncale v. Sundowner Offshore Services, Inc., holding that federal law forbidding sexual harassment applied to “same sex” harassment, aka “all male action”, though I guess the Court did not use that term. Now, maybe this was a case of S.Ct. inside baseball, with Nino voting with the rest of the Court only so he could write the opinion and thus “control” it, but I find that trivial even if true. The important thing is that he put his name on what was widely and reasonably seen as a “pro-gay” decision.
But, otherwise, Nino was furiously anti-gay, aggressively dissenting from the, ah, “seminal” Court decision in Lawrence v. Texas recognizing a constitutional right to sodomy, and, more than that, sodomy for everyone, not just wild and crazy (and, I guess, damnable) straights,1 while the Court’s “worst” decision of all, Obergefell v. Hodges, Scalia claimed, was simply the Court usurping the people: “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
In his dissent in Obergefell Scalia refrained from expressing moral outrage over the idea of same-sex marriage, saying that if the people in a state voted for it that was their business, but in other decisions he was “nakedly” contemptuous of the “so-called homosexual agenda”, as catalogued by Nathanial Frank in Slate magazine. In the first of four major Court decisions affecting gay rights, Romer v. Evans, Scalia bravely but unsuccessfully defended the constitutionality of a Colorado law that stripped gays of anti-discrimination protections, a position strongly suggesting that he would not be “down”, as the kids say, with Bostock. Among other things, Scalia moaned that the decision “places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias.”
Yet Scalia put the worst first in his dissent, leading off with the sentence “The Court has mistaken a Kulturkampf for a fit of spite.” In other words, if the Colorado statute was “merely” (I guess) a fit of spite, a gratuitous attempt to inflict harm on a given subset of the state’s population for no good reason, okay, unconstitutional. But that wasn’t the point of the law, says Nino. Instead, the statute “is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” In other words, Kulturkampfs are constitutional! Which is, well, “kind of funny,” since the original Kulturkampf was invented by everyone’s favorite moralist, Otto von Bismarck, and waged against Catholics in the German Empire as a political gimmick to garner liberal support for his illiberal policies (since most liberals in Europe were almost reflexively anti-Catholic).2
In any event, Nino, with all his fuss and feathers about intellectual consistency, was as flexible as an eel, if not an octopus, when he needed to be, displaying more gyres than a corkscrew in his concurring opinion in the case of Gonzales v. Raich, which held that the interstate commerce clause of the constitution provided adequate grounds for a federal law forbidding the use of marijuana to negate California’s “Compassionate Use Act”, even permitting federal agents to destroy six marijuana plants being grown by private individuals for their own use. An expansive reading of the interstate commerce clause is a “classic” liberal move, allowing the federal government to do pretty much whatever it wants, something that Scalia had previously denounced in two earlier decisions. But here, moved by his hatred of weed, Scalia “discovered” that the “necessary and proper” clause allowed the feds to get their hands on the offending pot, destroying the six plants being somehow “necessary and proper” to the regulation of interstate commerce. As Justice Thomas, more consistent than Scalia (in this case, at least), points out, in commendably originalist detail, this is nonsense, concluding
The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of “displac[ing] state regulation in areas of traditional state concern,” id., at 583 (Kennedy, J., concurring). The majority’s rush to embrace federal power “is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union.” United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 502 (2001) (Stevens, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.
However, Thomas was in for the kill with Nino in the most outrageous violation of the constitution on record, Bush v. Gore, the two joining with Justices Kennedy and O’Connor and Chief Justice Rehnquist to seize the “right” to appoint the “Ruler of 320 million Americans coast-to-coast”, as Geoffrey Stone, law professor at the University of Chicago explains, in scornful detail.
Okay, that’s enough beatin’ on poor old Nino for today. But I’ll be back.
Afterwords
Thanx to Linda Greenhouse of the New York Times for, unknowingly, doing some of the legwork on this one.
1. I think Nino would allow that damnable behavior could be constitutional, and (possibly) even constitutionally protected, but in his dissent, he denounces the Court for calling to question the constitutionality of state laws forbidding both fornication and masturbation, which as I understand it are only venial sins rather than deadly ones. Then shouldn’t a state be allowed to forbid deadly sins as well, such as acedia (moral and spiritual apathy) and, you know, gluttony? (I’m pointing my finger at you, too much linguini!)
2. Otto’s Kulturkampf is often regarded by “history” as a semi-farce, but for the 2 million Polish Catholics within Bismarck’s reach, despised by almost all Germans, it wasn’t pretty. Wikipedia has more here.
