The North Carolina Bar Association heard from Justice Antonin Scalia Friday morning at their annual conference, just days, maybe a week, before the Court's decisions on voting rights and same-sex marriage cases. From the Charlotte Observer today:
"In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.You can read the whole article here.
Scalia said that approach presents two problems: Judges are not moral experts, and many of the moral issues now coming before the courts have no 'scientifically demonstrable right answer.'”
The whole point, as I understand this, is that the courts are NOT supposed to make moral judgments and are not supposed to make decisions based on the outcome - unless the outcome means stopping a violation of the law. They are supposed to take the facts of the case and match them as closely as they can to the law - either statute or Constitution. And no one said this would be easy because the law can't consider every possible situation, because different laws contradict each other, because conditions change and science changes our understanding of things. And every big decision to get to the Supreme Court is tinged with moral implications. Slavery, the taking of Native American land, school prayer, abortion, voting rights. It goes on and on. That's why we have the Supreme Court - to make these hard decisions.
Science has helped us understand things that were not understood when the Constitution was written. We now understand that African-Americans are not a subspecies of human being. (And many already knew then.) That depression, addiction, and other mental illnesses make it much harder to 'choose' the option that society sanctions. Women, it turns out, can do any job a man can. And gender isn't as male or female as we once thought. (Well people always knew there degrees of masculinity and femininity, they just didn't like it.) Yet lots of people still have a simplistic moral sense of 'personal responsibility,' one rooted in ideas about about hard work and taking responsibility leading to success. While I subscribe to this as an overarching ideal, I also realize that there are a number of barriers.
First, physical and mental ability or health may prevent people from living society's prescribed 'responsible' life style. Women were supposed to stay home and raise babies for example. And some still believe that's their sole function. Brain science tells us that many things we once thought were choices, aren't. Second, social and economic structures don't equitably connect hard work and socially beneficial work to financial independence. A great care-giver will never get rich tending the ill and elderly, while a great basketball player can make earn 1000 times what a great teacher can make. People of color were barred from education and from better jobs by law and once the law fell, those obstacles stayed up by custom. And some people inherit wealth without having to work hard or take any responsibility.
As quick as Scalia's brain is, it appears to have trouble getting past these concepts that seem pretty elementary to me. We know now through science that the object of sexual desire is not a choice. Logically, it makes no sense that so many people would choose a path that leads to derision and worse. This is not difficult unless you simply don't want to understand it.
We also know that it is the Constitution, not Leviticus, that Supreme Court Justices are to use as their benchmark. When we have competing rights, we have to weigh which one is more basic. Is the right to same-sex marriage more fundamental than the right to live in a society where there are no same-sex marriages? People who claim they are being harmed by same-sex marriage have the burden of proof and they have to show their harm is greater than the harm suffered by gays who can't marry. Equal treatment is as fundamental right as the Second Amendment - and 30,000 collateral gun deaths a year doesn't allow much infringement of the right to bear arms. I haven't heard of any collateral deaths due to same-sex marriage? Well, there was an apparent suicide in France.
I'm hoping Scalia was venting to the North Carolina bar because he was on the losing side of the two same-sex marriage cases, and that since he didn't convince five other justices, he's repeating his arguments in North Carolina.
And if he should feel this moral arbiter role is too great a burden, he knows he can always step down and let someone more capable take his job. I doubt that's going to happen. I suspect he loves being the moral arbiter, but only when his side wins.