The Unbearable Lightness of Antonin Scalia

As always, what’s particularly offensive about Antonin Scalia’s PROVOCATIVE comparisons of the rights of gays and lesbians and the rights of child molesters is that the underlying arguments are ludicrously incoherent:

If your theory leads you to the conclusion that Brown v. Board of Education was incorrectly decided, you need a new theory. Of course, Scalia has said elsewhere that he would have voted with the majority in Brown. But this just makes his theory less coherent than Rehnquist’s. “Judges cannot determine which minority groups are entitled to heightened protections under the equal protection clause except when they can” loses quite a bit of force as a critique of the Supreme Court’s holding that same-sex marriage is a fundamental right.

How can Scalia justify making an exception for Brown? It certainly cannot be derived from the text of the 14th Amendment, which does not mention race. Instead, Scalia has to argue that the equal protection clause was originally understood as applying to discrimination against African-Americans, and only this form of discrimination.

This argument, however, quickly collapses. Cases in which Scalia has interpreted the 14th Amendment as forbidding racial discrimination have generally not concerned the rights of African-Americans. Rather, these decisions have done things like shut down integration measures pursued by local school districts or protected the alleged rights of mediocre white college applicants to attend their first choice of school.

These applications pretty much destroy Scalia’s allegedly “originalist” reading of the 14th Amendment. There is no evidence that the 14th Amendment was originally understood as forbidding affirmative action programs, and Scalia has never even tried to make such a case. Scalia can try to escape from this by saying that the 14th Amendment forbids a broader, more abstract principle of racial discrimination than it was originally understood as doing. But once you’ve started down that road, there’s no principled reason to deny that the amendment forbids invidious discrimination against groups Scalia does not think are protected by the 14th Amendment, like women and gays and lesbians.

And, of course, it’s worse than that for Scalia. For all his bluster implying that he’s America’s Last Honest Judge, we shouldn’t forget that Scalia joined and has aggressively defended Bush v. Gore, the nakedly partisan resolution of the 2000 presidential election that, as it happens, was decided based on the Equal Protection Clause. Scalia would have us believe that it’s absurd to think that discrimination against gays and lesbians is forbidden by the 14th Amendment. But, apparently, it’s perfectly reasonable to think that the 14th Amendment forbids counting votes without a uniform state-wide standard if the count threatens to result in George W. Bush losing an election… and not in any other case (including the non-uniform count that awarded Florida’s electoral college votes to Bush.) Scalia has never offered an “originalist” defense of Bush v. Gore, and I’m pretty confident we’re never going to get one.