Justice Scalia is a brilliant man and no one can argue with that. But, he holds some rather antiquated viewpoints and he is not quiet about expressing those views.
Last week, Justice Scalia spoke to a group of people in Montana:
In an apparent reference to the court’s recent decisions on gay marriage and benefits for same sex couples, Scalia said it is not the function of the courts to create exceptions outside the Constitution unless a majority of people agree with them.
“It’s not up to the courts to invent new minorities that get special protections,” Scalia told a packed hotel ballroom in Bozeman in southwestern Montana.
It will come as no shock to anyone who knows me that I disagree with Justice Scalia on this point. The Court is not “inventing new minorities.” The Court is making sure that citizens of this country are not discriminated against because of their sexual orientation. That, Mr. Justice, is a colossal difference.
Did the Court invent a new minority of women when it granted them the right to vote? Blacks the same? No! The Court simply did that which was right. These were two groups of people who were being discriminated against because of their sex and skin color. The Court determined that it was no longer within our moral compass to discriminate in such a manner.
And yet, Justice Scalia seems to think that homosexual men and women deserve to be discriminated against. Later in the speech, Justice Scalia continued:
Changes to the Constitution were made to protect minorities and to give women the right to vote, but that’s not how the court operates today, he said.
Rather, a majority of five judges decide issues that should be in the hands of Congress or made through a change to the Constitution.
Surprise, surprise! I disagree. It is not the job of Congress to enforce the law; that is the Executive branch. It is not the job of Congress to ensure groups of people are not discriminated against; that is the Judicial branch. Yes, Congress passes the laws. But, it is the courts and, in some circumstances like here, the ultimate Court which decides whether the law is being applied fairly and in a non discriminatory manner to all citizens.
DOMA said that legal marriages were between a man and a woman. That discriminated against men wishing to marry men and women wishing to marry women. Boom! Discriminatory and unconstitutional.
Of course I’m over simplifying but that’s to make the point: you can not say that one set of discriminatory laws are okay while another set of discriminatory laws are not okay. Either a law discriminates or it doesn’t and either discrimination is okay or it isn’t. And if a law does discriminate and we determine discrimination is bad, then no discriminatory law can be enforceable. Period.
This isn’t a la carte justice wherein you choose what you want to say is okay and what is not. Either discrimination is bad or isn’t. I guess Justice Scalia hasn’t reached that point in the evolutionary process quite yet. Oh wait; that’s because evolution doesn’t exist!