Antonin Scalia | Ari Ezra Waldman | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

Antonin Scalia, Textualism, and What's Next for Prop 8


Today, I'd like to talk about a man known for the sharpest of legal minds. A man who some think is becoming an ally in our search for equality.

AsHe is a brilliant lawyer, a former editor of his top-10 law school's law review, and an incomparable advocate for his interpretation of the Constitution. His acerbic wit is ready to be levied against the left and the right when they get things wrong. He has been involved in some of the most important civil rights cases in the last thirty years, has represented conservative and progressive causes in his career, and has been a friend to law students wading through the muck to reach the promised land of thinking like a lawyer. He is a great friend of the scion of the women's rights movement, Justice Ruth Bader Ginsburg, and is a lover of opera and baseball.

I am, of course, talking about Justice Antonin Scalia of Queens (by way of Trenton). And, he may be a great friend when Perry v. Brown reaches the Supreme Court. This is one of the implications of a recent Slate article by David Gans and Doug Kendall, available here.

Take a moment to read their thoughts and then, let's discuss how they are right... to a point.

To see how, continue reading AFTER THE JUMP.

Mssrs. Gans and Kendall discuss conservative jurists' and lawyers' embrace of a wider conception of the Fourteenth Amendment than many of us had feared. This is important, not only for what a narrow interpretation of, say, the Equal Protection Clause, might mean for the future of justice in this country, but what it may mean for specific cases involving women, gays, and other historically disadvantaged minorities.

14th-amendmentHere is their argument in brief: Conservative legal luminaries have for some time argued that the Fourteenth Amendment, which provides, in relevant part, that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws," does not protect women from sex discrimination. Their rationale is that women were not on the minds of the drafters of the Amendment, African-Americans were.

And, indeed, the original version of section 2 of the Fourteenth Amendment, only required that all men be allowed to vote, implicitly allowing states to impose discriminatory voting laws on the basis of sex. But, conservatives like Ted Olson and Steven Calabresi disagree. If, as Justice Scalia says, the text of the Constitution is paramount, his myopic view of the Fourteenth Amendment is not only contrary to our sense of justice, but violative of the very text he reveres. When the states ratified the Nineteenth Amendment, finally giving women the right to vote, section 2 of the Fourteenth Amendment was changed. This took away the Fourteenth Amendment's only limitation on the guarantee of equality, which now has to be understood, according to Professor Calabresi, as banning "all systems of caste and subordination."

With that, Professor Calabresi, the founder of the conservative legal organization, The Federalist Society, sounds more like Larry Tribe, the famous liberal lion of constitutional law. Mssrs. Gans and Kendall suggest that we are coalescing around a broad view of the Fourteenth Amendment as the provision that "redeemed the Constitution from the sin of slavery" by making all forms of second-class citizenry unconstitutional, not just a particular racist attitude toward blacks. Equality, the authors write, "is neither a progressive nor a conservative idea: It is an American idea." Heart-warming words, indeed, and ones that are at the core of our community's bi-partisan push toward recognition as  members of society just like everyone else.

But, while Professor Calabresi's argument is historically accurate and persuasive (you can read his law review article here, if you have a long plane ride ahead of you), Mssrs. Gans and Kendall should take a step back before coming to such grand conclusions for at least two reasons.

First, coalescing around a broad reading of the Equal Protection Clause is great, but if we must do so on the back of a textualist or originalist interpretation of the Constitution, I am afraid we miss the forest for the trees. Textualism and originalism, simplified as the interpretive theories that argue that the Constitution means whatever the words meant when they were written, has long been a tool of the legal right wing to turn back the clock to a minimalist federal government -- before Roe v. Wade, before the Warren Court, before the New Deal and Progressive Era.

For example, the Commerce Clause never imagined federal interference in telling farmers what they can and cannot grow (Wickard v. Filburn), nor did any part of the Constitution imagine Miranda warnings, the exclusionary rule, or the illegality of the death penalty. Admittedly, accepting a textualist interpretation of one clause does not necessarily require us to be textualists in all cases, but it does assume the validity of the interpretive method. I am not sure we want that.

Second, it is a logical jump to suggest that a view of the Fourteenth Amendment that protects women from sex discrimination also protects gays from sexual orientation discrimination. State and federal courts have been making this distinction for years -- being fired for being gay is a form of sexual orientation discrimination, not being able to marry someone of the same sex is a form of sexual orientation discrimination -- even though it is logically dubious. Marriage discrimination is a form of sex discrimination: not being able to marry a man simply because you are a man is discrimination based on you being a man. Still, this argument has rarely held sway. Even if it did, Professor Calabresi's argument fails us. His view that the Fourteenth Amendment does indeed ban discrimination against women on the basis of sex is in part dependent on the passage and textual implications of the Nineteenth Amendment, granting women the right to vote and amending the Fourteenth Amendment to explicitly eliminate sex discrimination in voting. No such textual amendment is handy to help gay and lesbian Americans in their quest for equality.

Keep in mind that this interpretive regime and the relevance of the Nineteenth Amendment for a broad reading of the Fourteenth Amendment is salient for textualists and originalists. I am under no such burden. I have no problem accepting the applicability of the Equal Protection Clause to sexual orientation discrimination, and just because Justice Scalia believes that the clause bans sex discrimination does not mean he is on board with the view that the clause also bans sexual orientation discrimination. For a textualist, the journey is much harder.

That suggests that the textualist interpretation is wrong and, at a minimum, not our ally when it comes to cases like Perry. Mssrs. Gans and Kendall are right to point out that textualists are making progress; but they are wrong to see that progress as even remotely sufficient.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. The same Scalia who blocked the recount and got Bush into power?

    Posted by: suede | Dec 14, 2011 2:16:23 PM

  2. Are the textualists really making progress? Sure Calabrisi is a well known voice in the movement, but he's not a judge or a lawmaker.

    As I read the Slate piece, Gans and Kendall cite as evidence the fact that Scalia hemmed and hawed when confronted by Dianne Feinstein in a Congressional hearing. Ergo, say Gans and Kendall, he is softening his hardline approach to the Equal Protection argument. Then they say that the shift originates in Calabrisi's article.

    I have no doubt Scalia read Calabrisi's article, or at the very least is aware of it. However, I have a prosaic explanation for why he backed down at the hearing. Like all bullies, Scalia got intimidated when faced with some real authority (rather than say a pack of lawyer, law professors, and law students.) A Senator confronted him from a Senate committee room in the front of the C-SPAN cameras and the national news media, which he never has to confront at the Supreme Court. Ergo, he shrank just a little bit, knowing that anything he said would be used against him. After all, the Justices don't stop by Congress committees just to say hello. They go because they need/want something.

    It is wishful thinking to say that this is evidence of a textualist/originalist shift. All Calabrisis's article is evidence of is that one textualist has shifted. Give Scalia a gender (not even sexual orientation) Equal Protection, and no doubt he will revert to his fallback position.

    Posted by: Sol Muser | Dec 14, 2011 2:29:04 PM

  3. Third proviso: if you think that Scalia is more driven by principles than by results, then you may need to get out more. Thomas is willing, in my judgment, to reach legal decisions that cut against his political preferences, but Scalia? Sorry, but I've read too many of his opinions. More rationalization than reasoning.

    Posted by: BABH | Dec 14, 2011 2:33:55 PM


    ari = repub/conservative

    Posted by: say what | Dec 14, 2011 2:38:01 PM

  5. Justice Scalia has on several occasions already stated that litigants who are relying on the 14th Amendment to win marriage equality for gay and lesbian Americans will "be in for a big surprise". He has stated (and I heard him say this on C-SPAN), that the 14th Amendment was only intended to apply to former slaves. Therefore, unless you are a former slave, according to Justice Scalia, the Constitution makes no guarantees of equal protection under the law for you. In my opinion, anyone who thinks he will be a vote in favor of marriage equality is seriously mistaken. You can expect him and his toady, Clarence Thomas, to be 100% certain votes against marriage equality.

    Posted by: RWG | Dec 14, 2011 2:41:36 PM

  6. P.S. I'd love to be proved wrong.

    Posted by: RWG | Dec 14, 2011 2:45:39 PM

  7. You have finally lost it, Harvard grad.

    Posted by: Patrick Wellington III | Dec 14, 2011 2:49:50 PM

  8. Babh: my thoughts exactly. Expecting Scalia to come around on gay equality because of a development in legal scholarship is like expecting good weather because you left your umbrella at home.

    I don't know how anyone can get through a 1L class on con law without realizing that, especially with regard to Scalia and especially with regard to contentious issues, policy preferences drive the vehicle and legal theories come out of the tailpipe. Ted Olson is a valuable ally not because he has a better or more persuasive command of originalism, but because he's buddies with the right justices.

    Posted by: Pender | Dec 14, 2011 2:50:33 PM

  9. If there is one reason to vote for Obama next year it is the fact that one or more seats might open up during the next presidential term considering the following ages: Ginsburg (78), Scalia (75), Kennedy (75), Breyer (73) and Thomas (63).

    Posted by: MM | Dec 14, 2011 3:00:48 PM

  10. @saywhat: even if that were true, not sure how that would matter.

    let's try to keep in mind that the point of the piece is how i DO NOT think Scalia is a really an ally on marriage equality despite the apparent changes on sex discrimination.

    Posted by: Ari | Dec 14, 2011 3:02:05 PM

  11. So interpreting the constitution is just like interpeting the bible. People c600 years later can take the text "sleep the sleep of a woman" and turn it into an anti-gay mandate for Gawdamitey, by saying "Oh, that's what he must have meant."

    The people who wrote the 14th amendment didn't say it applied only to black people. They said "anyone", no asterisk.

    If Scaley did indeed say that the 14th amendment was not going to be applicable to a marriage equality case, and that is on tape, he may have to recuse himself.

    That would be very ironic, and very sharp.

    Posted by: Ben in Oakland | Dec 14, 2011 3:02:43 PM

  12. @WRG: i suggest you read the Gans/Kendall piece. that article notes how Scalia has walked back that absolutism. that was the whole point of their piece. im arguing that stepping back from absolutism does not mean Scalia will be a marriage equality ally.

    Posted by: Ari | Dec 14, 2011 3:04:23 PM

  13. The money quote from an interview with Scalia in California Lawyer magazine: "You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't".

    That interview was from January of this year. I really doubt he has changed his mind since then just because he was confronted by Senator Fienstein in October. Thinking Scalia will be a help when Perry vs. Brown gets to the Supreme Court is laughable. Next we will be hearing that Michelle Bachmann will be a gay-marriage ally.

    Posted by: KP | Dec 14, 2011 3:07:33 PM

  14. Wow, the posts here seem to be unanimous. I agree with them. Scalia is a self-avowed culture warrior. And I have always been perplexed by the media portrayal of him as a brilliant lawyer and a brilliant jurist. He is neither. Do the various media outlets recycle this description of Scalia because it's easier than actually doing research to discover what a results-oriented jurist he truly is!?! It sure seems so.
    To Ezra I would say: Wanna bet $10,000.00 that your read on Scalia is dead wrong? OK, maybe $10.00! Have you read his dissent in Lawrence v. Texas? I don't think such a commited egotistical "culture warrior" is likely to change his stripes?

    Posted by: Dan Cobbb | Dec 14, 2011 3:08:00 PM

  15. Ari, an interesting and well-thought out piece as always. However, I'm concerned about simply assuming that textualism is wrong because it comports with the policy views of one set of jurists. You point out that textualism developed as a right-wing response to the Supreme Court of the 1930s-70s. And you suggest that it's based on policy considerations/disaffection for the direction of the country and court in the middle years of our century. But, cannot the same argument be leveled against those who believe/advocate for a living constitution?

    I wish people on the left would recognize they don't just happen to embrace a broad reading of the Constitution haphazardly, but because, just as with the right and originalism, the living constitution argument comports with the policies and preferences of the left.

    Attack originalism for its inconsistency, limitations, what-have-you, but if you're going to say it's about the right's policy preferences, you're going to have to admit the left has its own constitutional interpretation that just happens to require/enshrine the left's policy preferences.

    Posted by: Dangermouse | Dec 14, 2011 3:14:22 PM

  16. As far as I'm concerned, Scalia (as with the other judges in his wing of the court) who voted to accept the Bush v. Gore case (let alone issue that craven majority) lacks any credibility as a SCOTUS jurist. The level of intellectual dishonesty in this jurisprudence is at times staggering. And if anyone thinks that he is going to set aside his Catholic beliefs to find equality for gays and lesbians in the 14th Amendment, is living in a fantasy world.

    Posted by: horserotorvator | Dec 14, 2011 3:17:52 PM

  17. Just remember that it is a long way from saying that the 14th Amendment applies to sexual orientation discrimination (even if Scalia were willing to go there) to saying that discriminatory marriage laws are a denial of equal protection that violates that amendment. No matter how much "progress" you think some conservatives have made on this front, just go back and re-read Scalia's dissents in Romer or Lawrence and see if you think he's ready to go there.

    Posted by: Glenn | Dec 14, 2011 3:18:51 PM

  18. My comment, by the way, was not directed at Ari...I think he clearly recognizes in his piece that Scalia is not going to be our friend when Perry arrives at the Court's doorstep.

    Posted by: Glenn | Dec 14, 2011 3:21:01 PM

  19. At the end of the day, everyone knows it will come down to Kennedy. The four liberals on the court are going to want to strike down Prop 8 and the four conservatives are going to want to keep it. Kennedy in the past has not been anti-gay in his decisions (he wrote the majority opinion in Lawrence vs. Texas) but gay marriage has never been brought before the court before so it is a whole new playing field. It all really comes down to him.

    Posted by: KP | Dec 14, 2011 3:25:04 PM

  20. The only thing we have going for us is Scalia's dissent in Lawrence which basically says "if you do this then nothing can stop gay marriage from becoming a reality." (paraphrasing) In fact, many on the pro-marriage equality side cite to Scalia's dissent for support. He might be hoisted by his own petard in this one if he decides to attribute actual meaning to his words. However, this nonsense about his changing his mind about the 14th amendment is just that: nonsense.

    Posted by: Jonathan | Dec 14, 2011 3:28:55 PM

  21. @dancobb: i suggest you reread my post because you completely misstate my position... 180 degree misstatement.

    Posted by: Ari | Dec 14, 2011 3:40:05 PM

  22. Ari,

    I have enjoyed our exchanges and virtually always agree with you on your opinions and observations, and you are right once again.

    You are indicted here (indeed, declared a rupublican and conservative) for praising the sound legal mind that is Antonin Scalia. This cannot be disputed, as his acumen is on public record.

    For the doubters, read the final paragraphs of Scalia's dissenting option in Lawrence to understand how we got where we are today, and how Scalia himself declares the war for gay marriage all but won in the dismantling of the Texas sodomy laws. He is brilliant in his appraisal of the logical flow of the rights of gays from that court ruling.

    While I disagree with many of Scalia's views and opinions, his mind is without peer.

    Kudos, Ari, on another great piece.

    Posted by: David | Dec 14, 2011 3:57:26 PM

  23. An interesting analysis, Ari. Thanks for bringing it to our attention.

    I think Scalia still has an out: civil marriage is not defined in the Constitution and the right to marry can reasonably be interpreted as the right to form a domestic partnership with one person of the opposite gender. Lesbians are free to marry, but like their straight sisters, limited to marrying a male.

    The question then becomes whether the law can treat marriage preferentially to other domestic relationships that have similar public purposes, and one ends up with the conclusions reached by the California Supreme Court that registered domestic partnerships satisfy the equal protection mandate.

    While such an outcome would be acceptable to me personally, it would not address those who feel that denial of the word marriage as an irremediable insult.

    Posted by: Rich | Dec 14, 2011 4:36:18 PM

  24. Indeed, @David, Scalia's mind is without peer. He is the most feted hack on that bench. It is because he is loquacious in his invective that wins him praise. He takes the robes he wears seriously and uses them as a shield against his risible understanding of the Constitution.

    As as been pointed out: He directly stated that if Lawrence v. Texas is precedent, then there is no justification to deny same-sex marriage. Well, it's going to come before him in the court. Do you seriously doubt his response will be, "Well, as I pointed out in my dissent in that case, there is no constitutional justification to deny same-sex marriage, therefore Prop 8 is unconstitutional"?

    Never mind that the other big marriage case before the Supreme Court specifically found that marriage is a fundamental right and that the 14th Amendment specifically protects it. Never mind all the other SCOTUS decisions that have concurred with that decision. Do you honestly believe that Scalia is going to live up to his previous declaration?

    Or will he weasel out like the hack jurist he is? Will he try to make the same argument he has always made: That society has a right to make such "moral judgements" and while L v. T may have struck down sodomy laws, that doesn't mean marriage necessarily comes along for the ride, purpose of marriage for children, etc., etc.?

    Posted by: Rrhain | Dec 14, 2011 4:57:43 PM

  25. Scalia does not work from the constitution to the decision. He works backwards. He knows the result he wants, and he'll come up with some no doubt clever argument to justify it. Expecting him to write, or even concur with, a decision that upholds the right of gays to marry reflects delusional thinking. See for example his decision on Gore v. Bush, his comments on torture not constituting cruel and unusual punishment) or any other of his self-serving decisions.

    Posted by: Jonathan Oz | Dec 14, 2011 5:52:06 PM

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