People are having trouble understanding Justice Scalia's rants in the gay marriage cases today. What they fail to appreciate is that Scalia can only be properly understood as a humorist. His opinions are intended for entertainment purposes only.
For example, you might wonder how Scalia can exalt the "democratically adopted" DOMA statute that the Court partially struck down in the Windsor case (to his chagrin), when he joined the majority opinion in the Voting Rights opinion issued only yesterday, in which the Court showed no respect whatsoever for the considered judgment of a democratically elected Congress. This makes no sense, until you realize that Scalia was just having a little joke at Congress's expense.
Then there is this hilarious quote from the DOMA case: “However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid — indeed, downright boring — justifying rationales for this legislation. Their existence ought to be the end of this case.”
First, notice the sly little dig at his colleagues, who ten years ago affirmed that people actually have a constitutional right to engage in what Scalia amusingly calls "same-sex sex." OK, Scalia is saying, "you guys think those private consensual activities are constitutionally protected, but give me a break. We're talking about sodomy here." What Scalia likes to call "traditional moral disapproval" must still carry a lot of weight.
Even more hilarious is the way Scalia introduces the idea of those things that we traditionally morally disapprove of: Let's set that "traditional moral disapproval" aside, Scalia says. As if we could ever even think about doing that! Are you kidding me? Does anyone think Scalia is setting aside "traditional moral disapproval" for one second? What a knee slapper!
Finally, we get to the part about the many valid--indeed downright boring--rationales for this legislation, which leads Scalia into a lengthy discussion into such problems as the thorny choice of law issues that might confront a gay couple married in New York who decide to move to Alabama. As if Scalia actually cares about this hypothetical couple's problems! What's funny is to imagine Scalia's secret glee at the thought of the newly-married same-sex couple from New York introducing themselves to their new Alabama neighbors. And the idea that DOMA was intended to help people in that situation, and we should uphold it for that purpose!
Again, the whole thing is even funnier when you remember that only yesterday, Scalia joined the opinion striking down Section 4 of the Voting Rights Act in spite of Congress's expressed concerns in that legislation for dealing with real problems: namely the real problem of states enacting changes in their voting procedures to disenfranchise minority voters, of which we have seen a major upsurge in the last couple of years. We don't need to worry about those little problems, Scalia is telling us. We have to throw out the whole pre-clearance framework of the Voting Rights Act because we don't think Congress did a good enough job. The Voting Rights Act? That's only the most respected and effective statute from the Civil Rights movement, one that has stood the test of time since 1965 and been repeatedly extended by overwhelming bi-partisan majorities in Congress. We need to gut that statute! On the other hand, there's DOMA, which was only enacted in the 1990's and has been of dubious constitutional validity since Day 1. Now there's a statute we need to respect!
You've got to hand it to Antonin Scalia. Maybe he's not quite up to the level of Mark Twain, but he has a way with satire, that's for sure.
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