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. Interesting piece, but the view that "conservatives" have always been "textualists" is wrong as a matter of historical fact.

    The pre-Wickard Court, i.e. the Lochner Court struck down "police power" laws such as minimum wage and child labor laws on the basis of protecting the freedom of contract, which they argued was implicit in the Constitution's guarantees and in particular in the 14th Amendment. Key word: Implicit.

    Back then, it was the "liberals" who used the textualist approach, and pointed out that the word "contract" did not appear anywhere in the Constitution, and therefore the Court was wrong in Lochner.

    This is just one example, but there are many more in the Court's history in the early 20th century where the liberal Justices were the textualists.

    It's over simplifying and myopic to today to historically equate conservatism with textualism.

    As for originalism, you're doubly wrong there. Some of the most "liberal" Justices in the Court's history were "originalists" -the first Justice Marshall's view about the role of the expanded federal government was an originalist view. He stuck to the Supremacy Clause as proof that the original intent of the Constitution was to provide a strong, broad federal power. Originalism has only recently been associated exclusively with "conservative" results.

    Posted by: Jorge | Dec 14, 2011 5:56:36 PM

  2. For those referring to Prop 8, I'm of the opinion that Prop 8 isn't going to be heard at all by SCOTUS. I think they will deny an appeal by the proponents based on standing. Even if the 9th allows standing, I don't see that as a guarantee SCOTUS will.

    Posted by: DanO | Dec 14, 2011 6:03:25 PM

  3. I recommend watching this discussion from C-SPAN, Oct 26, 2009.

    Scalia states unequivocally that Equal Protection does not apply to same-sex marriage.

    Posted by: RWG | Dec 14, 2011 6:07:38 PM

  4. One of the great tragedies of the last half century or so is the rise of "originalism". It's just a cover for conservative bigotry. If all these guys, Scalia included, really believe that the 14th Amendment was only about black slaves, then where is the conservative movement to amend the constitution to explicitly protect, oh, I don' know... the Portuguese?

    It's all a scam, a very well funded scam.

    Posted by: BobN | Dec 14, 2011 6:32:31 PM

  5. @jorge: with all due respect, nowhere did I say all conservatives are or have always been textualists; nor did I say liberals were never originalists. Thank you for your insight, though. All correct, but as a criticism, it is specious vis-a-vis the piece I wrote.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Dec 14, 2011 6:57:39 PM

  6. This is a very deep read for someone who study's law, and feels goosebumps while talking about it. However, I got the gist of it. Thanks Mr. Waldman.

    Posted by: FlexSF | Dec 14, 2011 7:38:31 PM

  7. "Expecting him to write, or even concur with, a decision that upholds the right of gays to marry reflects delusional thinking."

    Exactly. I know people who knew Scalia personally. He is as bigoted and homophobic as anybody can be. For example, he worships at an ultra-right wing Catholic church in the Northern Virginia suburbs. Mere Catholicism isn't conservative enough for him!

    Posted by: St. Theresa of Avila | Dec 14, 2011 8:49:34 PM

  8. The inherent problem of the incompatibilities of the various clauses in the constitution to agree with each other do make for a lot of wiggle room interpretation-wise, regardless of one's political orientation. Unfortunately, our system is so slow that injustice is very hard to reform, even with liberal activist justices.

    Posted by: anon | Dec 14, 2011 8:53:34 PM

  9. I went to law school with Ted Olson's wife Barbara. She was an arch conservative; but she was an adamant advocate for gay rights. She tragically died on 9-11. She argued that 1. there was a separation of church and state; 2. that all complaints about homosexuality were derived from religious sources; 3. that there were no scientific findings that homosexuality was harmful - ergo homosexuals were entitled to the same rights as heterosexuals. She was a very strong advocate for what she believed and her beliefs about gay rights- long before it was generally accepted - were quite strongly presented by her in law school. So that may explain Ted Olson's unexpected support.
    I think this article could have been 1 or 2 paragraphs long and thereby have been more effective. You have to get out more.

    Posted by: Mark | Dec 14, 2011 10:05:38 PM

  10. Scalia thinks like a lawyer, not a judge. He has an argument to make, and he finds law to support it. He does not look at the law and come to a conclusion, as a fair jurist should.

    Posted by: MattS | Dec 15, 2011 12:02:55 AM

  11. You do not need a court to overrule Prop 8, which after all was a response to the courts. You simply need a ballot box. 52.5% of people voted for it. Must we really think that our ideas are so bad we cannot change the mind of 2.6% of the electorate (some of which may have supported gay marriage, but felt it was improper for the courts to introduce it)? I think not. Polls show that gay marriage supporters are in the majority - indeed, by the time Prop 8 was struck down, polls showed a majority supported gay marriage.

    In 2012, I believe, gay marriage will be an issue at the ballot - if so, and if accepted, the gay community will have the chance to do what no other gay community has had the chance to recieve: the right to gay marriage directly conferred to them by their fellow citizens, thus giving them unparallel social legitmacy which cannot be matched anywhere else in the world. No more talk of 'activist' judges and appealing to 'friends in high places'. The critics will be silenced.

    I also observe the Supreme Court will not strike down 45 statutes (it would be unheard of if they invalidated this many; often we need a "national consensus" with a few outlier states), and especially given 97% of the world does not have gay marriage, including countries like Australia, New Zealand, Italy, Germany, France, Denmark, Austria etc. In fact, 26 judgements have found no right to gay marriage - most than the 12 initiatives! On the whole, courts are actually quite majoritarian.

    Posted by: Spadj | Dec 15, 2011 7:45:55 AM

  12. Ari, you said: "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 the Warren Court"

    Before the Warrent Court, and post-New Deal, it was the liberals who used originalism and textualism as their interpretive theories. So it is not correct to say that it was the right wing who was using originalist meanings before the Warren Court (and certainly not before the New Deal, given that during the Lochner era the "protection of contract" argument was neither originalist nor textualist).

    Your next point, that the Commerce Clause never required the result in Wickard, is therefore exactly wrong. The liberal interpretation of the Commerce Clause in Wickard was an originalist interpretation.

    For these reasons, I'm quite sure my critique is everything but specious, but thanks for the compliment :).

    I agree with you 100% that Scalia isn't going to vote in favor of the marriage equality side. I'm just trying to point out (constructively, but apparently, I failed) that interpretive theories of the Constitution have shifted throughout the Court's history and that it is important to remember that they have changed sides. The reason this is important is because liberals do not need to fear originalism and, I gather, the sooner a reembrace of it occurs, the sooner liberals will regain a majority voice on the Court.

    Posted by: Jorge | Dec 15, 2011 11:53:11 AM

  13. Can I have some of what you're smoking please?

    Posted by: Q | Dec 15, 2011 1:41:50 PM

  14. @ SPADJ:

    Rights bestowed on a minority by the majority can be taken from the minority if the majority changes its mind.

    Posted by: searunner | Dec 15, 2011 1:57:44 PM

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