Scalia and The War In the Supreme Court Over Gay Marriage

Guest post by Eric Zuesse.

Preface by Washington’s Blog:  Zuesse points out that some of Justice Scalia’s Catholic beliefs are in tension with his Constitutional convictions. Indeed, Scalia’s belief that American law should be based on strictly Judeo-Christian Biblical principles contradicts the tolerance which the Founding Fathers showed to other faiths.

This dichotomy might be resolved if Scalia’s statement that the Constitution must be “strictly construed” is interpreted not to mean that the Constitution of today, or as of the date the Bill of Rights was written, or even before the Bill of Rights … but that the Constitution should be interpreted according to his view of what Jesus and the authors of the Bible thought some 2,000 years ago. In other words, Scalia wants a Biblical construction of the Constitution.

Adam Liptak delivered, in The New York Times, on March 29th, one of the finest analyses that has ever been provided in a news report concerning the inner workings of the U.S. Supreme Court, and he presented Antonin Scalia as the Court’s bulldog against gay marriage.

Headlining “Who Wanted to Take the Case on Gay Marriage? Ask Scalia,” Liptak concluded that the only member of that Court who has been unhesitatingly wanting the Court to rule on the constitutionality of gay marriage is Scalia, and that the reason is that Scalia thinks that the Court is only going to be becoming more liberal, not more conservative, from now on.

Liptak explains why the Court’s other four Republicans – Thomas, Alito, Roberts, and Kennedy – might not have wanted to render a decision “on the merits” in this important case (Hollingsworth v. Perry), but Liptak concludes that Antonin Scalia definitely did want to rule “on the merits,” or on the constitutionality of gay marriage; and here is Liptak’s key passage on that:

“The aha moment came on Tuesday. After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. ‘It’s too late for that now, isn’t it?’ he said, a note of glee in his voice. ‘We have crossed that river,’ he said.”

Liptak then goes on: “That was a signal that it was a conservative grant,” which had been made back in December to hear this case. Liptak explains that in order to hear a case, at least four justices must vote to hear it, but that in order to win a case, at least five justices must vote in favor of a given verdict concerning it. Liptak also explains why he thinks that the other at-least-three justices who joined with Scalia in December to hear this case were his fellow Republicans, and not the Court’s liberals: “That theory was demolished in the courtroom [on Tuesday] as one liberal justice after another sought to find a way to avoid” ruling on the merits. Consequently, the prospects for a ruling that gay-marriage bans are unconstitutional would appear to be slim.

Liptak also proves, by analyzing Kennedy’s statements during oral arguments on Tuesday, that at least Kennedy doesn’t want to rule on the merits on this case. In fact, the “aha moment” was the very moment when Scalia basically told Kennedy that there is going to be a ruling on the merits, regardless of whether Kennedy wants to or not. Scalia was essentially telling Kennedy there, in effect: “Either you will be joining with us in a verdict that the Equal Protection Clause does not extend to gay marriage, or else you will be joining with the Democrats to kick that can farther down the road and have it become lost in the coming liberal jungle.”

Scalia, in other words, is betting that, when forced to do so, Kennedy will join his side in (and will probably even write [so as to give Kennedy even more motive to join him in]) the Court’s verdict, saying that the last decision in the case, by Judge Vaughn Walker of the U.S. District Court for the Northern District of California, was in error when it concluded that the Equal Protection Clause applies to or includes any right of homosexuals to marry each other.

Beyond the analysis by Liptak, I shall go further and predict that Scalia will be disappointed; and here is the reason why:

Judge Walker’s ruling, saying that the Equal Protection Clause does apply, was very carefully crafted upon the basis of previous rulings by Justice Kennedy.

Here is the way that wikipedia sums this up:

“Professor Doug NeJaime of Loyola Law School noted that Judge Walker’s decision was crafted similarly to the standard used by Justice Kennedy in his decision in Lawrence v. Texas, and suggested that Walker was ‘speaking’ to Kennedy, who is commonly the swing vote on the Supreme Court.[91] John C. Eastman, a law professor who supported Proposition 8, agreed with Professor NeJaime’s assessment. Barry McDonald, a constitutional law professor at Pepperdine University, believed that Walker’s strict handling of the case and meticulous evidence gathering would ‘make it more difficult for appellate courts to overturn this court’s ruling.’[92] ‘Only a trial court [like Walker’s] can make factual findings,’ lawyer Brian DeVine said in an analysis. He further noted that ‘a Court of Appeal must give great deference to the factual findings of the trial court’, and praised Walker ‘for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court’.[93] Andrew Cohen, CBS’s legal analyst, questioned the defense team’s [the anti-gay-marriage group’s] decision to ‘cede so much ground at trial to their opponents’ and called ‘inconceivable’ their gamble that the conservative Supreme Court might ‘save the day’.”

However, this presents the very puzzling question as to why Scalia wants to place Kennedy into this trap, forcing him to rule on the merits, since Kennedy would have a hard time repudiating any of his own prior rulings (which explains why Kennedy wants to avoid ruling on the merits).

I have previously addressed that issue indirectly by documenting that Scalia is a bigot: In other words: he clearly hates homosexuals, he outright despises them, and he fears that the longer that a decision on the merits regarding gay marriage is postponed, the less will be the chances that this bigotry will be read, by the Supreme Court, into the U.S. Constitution that Scalia craves to rewrite (“interpret”) embodying his biblically based bigotries (including bigotry against homosexuals).

However, that, in turn, raises the question regarding why Scalia would hate homosexuals, and how he could possibly believe that his hatred is permissible to reflect in his legal decisions on the U.S. Supreme Court, whose decisions are supposed to be based instead upon the Constitution. As it turns out, Scalia has talked a great deal about that, though mostly outside the Court itself.

On 25 January 2002, during a conference on the death penalty, at the Divinity School of Scalia’s former employer the University of Chicago, Scalia (as subsequently was published at, stated repeatedly that he saw his Supreme Court function as being to interpret the U.S. Constitution in its original meaning, so long as this meaning is consistent with the Bible and with the edicts of the Roman Catholic Church, of which he happens to be a proud devotee, which religious belief on his part is, of course, his protected personal right as an American, guaranteed to him under the First Amendment to the Constitution – but not as his right to embody biblical bigotries in his professional work interpreting the U.S. Constitution.

Scalia’s remarks implicitly passionately endorsed the death penalty, though he explicitly denied that he was doing so, by saying, “I am judicially and judiciously neutral on that point.” However, regarding the death penalty, he expressed his personal sense of relief as a Catholic, at the “non-binding” nature of his Pope’s encyclical Evangelium Vitae against the death penalty, and he said that if the Pope had instead chosen to repudiate the death penalty ex cathedra, so as to “proclaim it as an article of faith,” instead of so “that … it need not be accepted by practicing Catholics,” then not only would “American Catholics running for legislative office” be morally obliged to “oppose the death penalty,” and not only would “American Catholics running for governor” have to “promise commutation of all death sentences,” but “American Catholics” and not only Scalia himself, would be “ineligible to go to the bench in all jurisdictions imposing the death penalty” – no Catholic lawyers or judges (such as himself) would be able to participate in death-penalty cases.

In other words, this member of the U.S. Supreme Court said that each Catholic’s commitment to his Church supersedes his obligations to his nation, and that therefore Scalia’s personal obligation to obey the Pope superseded the professional oath of office that Scalia swore to when he joined the Supreme Court, in which he promised to faithfully execute the Constitution of the United States of America. To him, there was a higher Law than the Constitution of the United States, and he must never do anything that would violate it.

He was thus exactly the opposite type of Catholic from John F. Kennedy, who made clear that dictates of the Pope had no bearing upon his decisions as the U.S. President.

Scalia even expressed the view that he would dread being compelled by circumstances to choose between these two commitments, and that those would all be “disastrous consequences” that he had described, but that, if the Pope were to rule ex cathedra against the death penalty, then this command would be absolutely binding upon not just himself but every Catholic, because, according to Scalia, Papal edicts transcend not only the believer’s individual conscience, but even his own nation’s laws and also the given Catholic believer’s personal sworn commitments.

In this speech, this Roman Catholic Supreme Court jurist interpreted the Church/State relationship in precisely the opposite way from JFK. During the intervening 40+ years after JFK, with the advent of President Reagan who appointed Scalia, the fundamentalist religious viewpoint had soared to become so mainstream in the U.S., that Scalia was able to say such things now without sparking massive public outrage.

To the contrary, practically no one at the time saw fit to remark at all upon Scalia’s speech; nor did the press do so. Clearly, the Church/State separation that was accepted unquestioningly in 1960 in America, had become actually alien to American political culture four decades later.

There wasn’t even any serious reaction to this speech among the scholarly audience who heard it delivered. Quite the contrary: The speech transcript (subsequently removed from the website of the Pew Forum, which hosted this speech) indicates that Scalia’s address was interrupted seven times by laughter from the audience. This joviality was in keeping with the speech’s style of camaraderie, which encouraged listeners to glide over the most serious things Scalia was saying. His scholarly audience seems to have been totally unaware – oblivious, actually – that they were listening to treasonous jurisprudential ideas from a member of the U.S. Supreme Court. But these assertions, by Scalia, in front of this audience of scholars, were nothing less than an advocacy of theocracy, coming from a U.S. Supreme Court jurist, duty-bound to enforce the U.S. Constitution.

It is further of interest that Scalia quoted, for authority on this grave matter, not the U.S. Constitution he swore to uphold when he first joined the Court in 1986, but instead, he quoted the Bible that he had learned to revere ever since his childhood. He quoted specifically the entirety of Romans 13:1-5. Scalia said that this biblical passage presents (which it unquestionably doesn’t) the basic theocratic position; namely, as Scalia put it, that “government, however you want to limit that concept, derives its moral authority from God,” and not, as Thomas Jefferson had claimed in the Declaration of Independence, “from the consent of the governed.” When the Declaration of Independence, with those precise words ringing in it, was unanimously adopted by the representatives of the thirteen founding colonies on 4 July 1776, the entire document became thereby an intrinsic part of the subsequent U.S. Constitution of 1787. Nothing in the Constitution contradicts the Declaration, including its statement that government derives its authority from the consent of the governed, instead of from any god, such as Scalia here insists.

In fact, the very opening words of the Constitution, the Preamble, tell us exactly upon whose authority the entire document rests: it’s not the authority of God; it’s not even the authority of the various states (such as Scalia’s Federalist Society asserts as a means of removing the authority of the people over the Federal Government). The opening words of the Constitution name “We, the people of the United States,” as the sole source of the document’s authority. The Preamble then immediately proceeds to itemize the purposes for which the Constitution and thus the entire Government of the United States serve: “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense,” and now come the two kickers, “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” (America’s government officials are told right there whom they are obligated to serve – “the people” – and how: these officials must “promote the general welfare, and …,” and they are not obligated to serve God or anything else.)  Then comes the Preamble’s close: “do ordain and establish this Constitution for the United States of America.” The clauses, “promote the general welfare,” and, “secure the blessings of liberty,” not only reinforce the opening “We the people” as the sole source of the Constitution’s authority, but they identify “the general welfare” and “the blessings of liberty” of these “We, the people” as the Constitution’s concerns.

These objectives not only exceed any for Scalia’s supposed “moral authority from God,” but they entirely exclude that: it’s not mentioned anywhere in the Constitution. (The European Union, when drafting Europe’s Constitution, would have been wise to have copied the U.S. Preamble word-for-word, only substituting “E.U.” for “U.S.A.” However, the Vatican and other conservatives, for obvious reasons, were determined to prevent any such Preamble. And the liberals, on the other side, knew nothing more than to propose the vague and virtually meaningless phrase “values underlying humanism” as their supposed guiding constitutional principle and thus the source of political sovereignty in Europe. America’s great Founders were light-years ahead of even the most advanced thinkers of our time, and were farther yet ahead of today’s American conservatives, who represent old England’s King George III, the man who was defeated by the American Revolution, so that today’s American conservatives are committed traitors to the U.S. Constitution and to the Founders who created it. The EU’s “Constitution” ended up as 300 pages of religious-liberal verbal clutter, without any authentic constitutional furniture; it’s just a philosophical waste-dump.) Scalia’s presumed source for the Constitution’s “moral authority” isn’t an overstatement; it is false.

Though Scalia asserts that the view that “government, however you want to limit that concept, derives its moral authority from God” was Paul’s view, he subsequently makes unequivocally clear that this is Scalia’s view as well: he says that he agrees with Paul, as he interprets Paul, on this important point. (However, his theocratic interpretation of Paul actually contradicts Paul. Paul insisted – e.g., Galatians 2:16, Romans 3:20-21&28 – that God’s Law is no longer binding. Romans 13:1-5 said that the temporal government must henceforth be obeyed as the lawmaker, instead of God. God’s Law is no longer binding; the ruler’s law now is binding. Galatians 3:24 said, “God’s Law was in charge of us until Christ came.” Galatians 5:1 thus said, “Christ has set us free!” This was/is freedom from the Ten Commandments and all the rest. Paul was anti-theocratic. Scalia falsifies the Bible, just as he falsifies the Constitution he’s paid by the American people to apply.)

Scalia repeatedly states that there must be “resolution to combat” what he calls the “tendency of democracy to obscure the divine authority behind government.” He declares his war against democracy not only implicitly, but also explicitly, by saying: “The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it but resolution to combat it.” This is incitement to “combat” democratic, non-theocratic, government: government answerable to the people, instead of to any “god.” Scalia here recognizes the anti-theocratic “tendency of democracy,” and he even seems to recognize that this “tendency” is inherent in democracy, but he doesn’t acknowledge the hard fact, which is that instead of being only a “tendency,” this is the very heart and soul of democracy. Just as democracy was encapsulated by the Declaration of Independence’s assertion that “governments are instituted among men, deriving their just powers from the consent of the governed,” theocracy is likewise encapsulated by Scalia’s assertion that “government, however you want to limit that concept, derives its moral authority from God.” What Scalia asserts to be a “tendency” of democracy, is democracy itself.

In other words, against the men who wrote the Declaration of Independence and the U.S. Constitution, Scalia, in this speech, declares himself to be at war, and is urging others to join him to “combat”; it is against – not for – the original intent of the U.S. Constitution, that this self-declared “constitutional originalist” is waging his popular battle, and is even intellectually rabble-rousing his treason.

This Supreme Court jurist’s company whenever he does this isn’t really America’s great Founders at all, such as he falsely claims (and against whom he is actually at war), and his company in this isn’t even Paul – who went to such pains to separate Law from God – but his company is instead other theocrats like himself, people who, as Scalia might proudly note, come from many different faiths, a diverse lot, such as Jerry Falwell, Pat Robertson, Osama bin Laden, Ayatollah Khomeni, Meir Kahane, Baruch Goldstein, and all other such theocratic religious fundamentalists, in every faith. Scalia has ecumenical company: theocrats everywhere. The U.S. President who idolized him, King George II – Scalia’s admirer, whom Scalia in turn admired enough to have been instrumental in having appointed him on 9 December 2000 to become the U.S. President – was part of that company, as is any extremist conservative.

In order to understand the depth of their anti-Americanism, perhaps the best single book – profound, brilliantly written, and comprehensive regarding the origins of the First Amendment, and perhaps the finest work ever published concerning the original intent of America’s great Founding Fathers and thus the U.S. Constitution – is William Lee Miller’s magisterial 1985 The First Liberty: Religion and the American Republic. If that history, together with the oath Scalia took to join America’s highest court, define the meaning of patriotism in the United States, then the comments of Scalia at the University of Chicago, expressing his commitment to “combat” that, reflect necessarily the opposite: the ancient, aristocratic, Church-State-bonded, system of government, against which the American Revolutionaries warred.

Coming from a member of the U.S. Supreme Court, it is not just a violation of oath-of-office, it’s outright treachery. This is not protected by the First Amendment, if advocating the undemocratic, even theocratic, war to “combat” the democratic U.S. Government is not. Especially is it treachery when it comes from a member of the U.S. Supreme Court. Such intellectual incitement, with a big audience on the growing far right, exacerbates Scalia’s violation of both the Constitution and his oath of office; this man is no mere flop-house vagrant (such as, for example, Adolf Hitler had briefly been, prior to his having become dangerous, carrying out “God’s Law” as he saw it to be); he has managed to be appointed as a very important part of the same democracy he now seeks to overthrow and replace – important enough to be able, in turn, to appoint America’s President, and to have actually done so on 9&12 December 2000.

Consequently, this Supreme Court jurist, whom America’s all-time-longest-poll-topping-popular President Bush said is the greatest of all U.S. Supreme Court jurists, is passionately, even if secretly (and he would always deny it publicly), committed to overturning and desecrating the very same democratic Constitution that he has taken a grave oath to uphold and defend as a member of this Court. And he already had plenty of company on the Court; not only Clarence Thomas followed his lead, but usually the Chief Justice, William Rehnquist, did as well; Rehnquist, in fact, who was appointed by both Republican Presidents Nixon and Reagan, had a record that some deemed to be the most conservative record on the court, slightly to the right of Scalia, who was solely a Reagan appointee. Thomas is an appointee of the senior Bush. Justices Sandra Day O’Connor and Anthony Kennedy, two other Republican appointees, usually joined with these three in rendering conservative opinions “interpreting” (often simply shredding) the U.S. Constitution. (All five of these theocratic “Justices” joined together to appoint King George II to the Presidency on 12 December 2000, the most scandalous dark day in American history, as is documented in their fellow Republican Vincent Bugliosi’s definitive 2001 The Betrayal of America.)

Furthermore, during oral arguments (to be found at on the case heard 2 March 2005 regarding the posting of the Ten Commandments at a Texas courthouse, Van Orden v. Perry, Scalia asserted that posting the Ten Commandments there was “a symbol of the fact that government comes – derives its authority – from God. And that is, it seems to me, an appropriate symbol to be on State grounds.” He said, “Monotheism is shared by a vast majority of the American people. And our traditions show that there is nothing wrong with the government reflecting that.” (Whenever Scalia cannot find a way to justify a legal opinion on the basis of the U.S. Constitution – which is supposed to be the basis for a Supreme Court Justice’s legal reasoning – he usually refers to “our traditions” as being the basis, and this phrase refers actually to the Scripture of his own Roman Catholic faith, thus baldly violating both his oath of office and the First Amendment.) He said that this monument of the Ten Commandments symbolized “the fact that our laws are derived from God,” and he asked, “Isn’t [the truth of] that symbolism sufficient [reason] to enable the State of Texas to use it [that monument]?” He expressed bitter disappointment at the argument being used by the proponent of this monument, charging him: “You’re watering it [your case] down to say that the only reason it’s okay [to keep the monument there] is it sends nothing but a secular message,” and he proclaimed, “I can’t agree with you. I think the message it [the monument] sends is that law is – and our institutions come – from God.” He imposed from the bench his theocratic philosophy that he had stated on 25 January 2002, and he accused the monument’s proponent: “I really would consider it something of a Pyrrhic victory if you win on the ground you’re arguing.”

Though Scalia’s assertions were to the effect that the United States is and must remain a theocracy, none of the other jurists disagreed with this outrageous view, and some even seemed to share his anti-Constitutional opinion. However, some appeared to favor instead considering the posting of the Ten Commandments at a courthouse to be mainly a secular statement – this being the liberal religious view, which the fundamentalist Scalia ridiculed. In fact, when the opponent of the monument asserted that America’s laws against murder are secular, Scalia asked, “Who are you kidding? I mean, everybody knows that comes from the Ten Commandments.” No one expressed disagreement with this assertion, either, even though it too is false, even a lie about the U.S. Constitution. According to the Preamble, the nation’s statement of sovereignty, the Constitution’s own Sovereignty Clause (though lengthier than most “Clause” passages in the Constitution are), all of America’s laws come from Man, and Man alone – specifically from Americans – not any come from the god of any religion, Judaic or otherwise. Every culture, even prior to Judaism, has legally defined, delimited, and prohibited, murder; and the U.S. Constitution nowhere attributes to the Bible and the biblical God its authority regarding anything – including murder. Nothing in the U.S. Constitution claims to come from any “god.” Yet Scalia’s anti-Constitutional assertions to the contrary went entirely unchallenged – in the U.S. Supreme Court!

The predominant view seemed to be expressed by the Republican jurist Anthony Kennedy, that anyone in the minority who doesn’t like to see the Ten Commandments posted at a courthouse can simply “avert his eyes,” and must be “an atheist,” not even possibly a believer in a different religion. (And Kennedy was there implying that “an atheist” doesn’t possess the same rights as anyone else in this country.) Kennedy said that in “this area, … there is this obsessive concern with any mention of religion. That seems to me to show a hostility to religion.” Like Scalia, he viewed the Ten Commandments as representing not specifically Judeo-Christian Scripture, but all religions, which also is historically false.

No one disagreed with that falsehood, either, even though this falsehood presumed that opponents of posting the Ten Commandments at courthouses could only be atheists, who have “a hostility to religion.” Scalia went so far as to “correct” the lawyer who was arguing to remove the Ten Commandments from the courthouse, by saying, “I thought Muslims accept the Ten Commandments.” After he was then corrected, in return, by that lawyer’s saying, “No, your honor, the Muslims do not accept the sacred nature of the Ten Commandments,” Scalia immediately distracted from this exposure of his own bigotry and ignorance of the world’s other leading faith, by means of a jocular comment, to which some unidentified person laughed. It was clear that Kennedy shared Scalia’s inference that this particular lawyer could only be an atheist. Scalia now is relying upon Kennedy’s bigotry, as the strongest card in Scalia’s hand, regarding Hollingsworth v. Perry.

Given the obvious pro-religious, and even narrowly Christian, prejudices of this judicial panel, Kennedy’s statement against atheists, in Van Orden v. Perry, was marginalizing that lawyer, in such bigoted company. In fact, Kennedy’s complaint against those who have “a hostility to religion” sounded similar in sentiment to Scalia’s earlier expressed complaint against the “tendency of democracy to obscure the divine authority behind government,” which this legal petitioner seemed to represent here. Two bigots on the bench were bonding.

And Scalia went on to repeat his theocratic theory of U.S. jurisprudence later the same day, when a similar case, #03-1693 (McCreary v. ACLU), was heard. Scalia said there that to assert that “the proposition that the moral order is ordained by God,” and also “that that’s the basis of the Declaration of Independence and of our institutions [including the U.S. Constitution], is entirely realistic.” He again supported the government’s posting the Ten Commandments, because “What the commandments stand for is the direction of human affairs by God.” This is 100% theocracy. He acknowledged, “You can’t get the Declaration of Independence out of the Ten Commandments,” but asserted, “I think what they’re saying is the principle of laws being ordained by God [and that this] is the foundation of the laws of this state and the foundation of our legal system,” which he held to be true, even though it’s very importantly historically false. He was there stating that America’s laws regarding murder must comply with the Bible, even above the U.S. Constitution – this was a direct extension from what he had said (and argued more extensively then by his lengthy but false interpretation of Romans 13:1-5) in his speech of 25 January 2002.

Again, no other jurist expressed disagreement with this outrageously false and outright treasonous view from a Supreme Court jurist. America’s great Founders, the authors of our Constitution, would have just turned over in their graves.

George W. Bush himself said, only a few months after Scalia’s 25 January 2002 University of Chicago speech, on June 27th, that the urgency to keep the words “under God” in the Pledge of Allegiance “points up the fact that we need common-sense judges who understand that our rights were derived from God.” This treasonous President went on to say that, “The declaration of God in the Pledge of Allegiance” is itself “a confirmation of the fact that we received our rights from God, as proclaimed in the Declaration of Independence.” One can hardly wonder, then, why Bush admired Scalia, above all other jurists. Indeed, as the AP reported, on 22 November 2004 (headlining “Scalia Says Religion Infuses U.S. Government and History”), Scalia told congregants at a synagogue that (as the AP paraphrased it) “official examples of the presence of faith” in America’s Government “go back to America’s Founding Fathers: the word ‘God’ on U.S. currency; chaplains of various faiths in the military and the legislature; real estate tax-exemption for houses of worship – and the phrase ‘under God’ in the Pledge of Allegiance.” If Scalia actually did assert such things, then he was either a liar, or terribly ignorant. For example, “under God” in the Pledge of Allegiance didn’t precede 1954. Could a U.S. Supreme Court “Justice” really be so ignorant, as that?

Such treasonous views are accepted in the U.S. because the nation’s culture had transformed during the two centuries since its founding. Thus, on 29 July 2006, The New York Times headlined “Families Challenging Religious Influence in Delaware Schools,” and Neela Bannerjee reported on how the lone Jewish family in a small Delaware town had finally, after 30 years, become fed up with officials of the local public school routinely introducing Christian admonitions, and “a minister’s prayer proclaiming Jesus as the only way to the truth,” so that the parent, Mona Dobrich, requested the “school board to consider prayers that were more generic and, she said, less exclusionary.” She wasn’t interested in protecting the rights and equal-protection position of atheists or agnostics, but only of herself and her child, and yet, “As news of her request spread, many local Christians saw it as an effort to limit their free exercise of religion, residents said. Anger spilled onto talk radio, in letters to the editor and at school board meetings attended by hundreds of people carrying signs praising Jesus.” She sued the local school district, and, due to threats by the mob, moved her family away to a large city. A few other non-Christian families in this small town anonymously joined her lawsuit, terrified by the reigning bigotry they were experiencing, and condemning “the pervasiveness of religion in the schools and seeking financial damages,” as well as “alleging proselytizing in the schools and the harassment of their daughters.” But the local majoritarian bigots persisted, and continued assuming that it was not for themselves to have to send their own children to religious private schools of their choosing and to pay privately for doing so if they wished religious indoctrination to be imposed by the school their child attended, but rather for minority families to have to pay privately for the privilege of avoiding being proselytized at their own and other taxpayers’ expense. To the vast majority of these local Delawareans, the U.S. Constitution protected only themselves and their co-believers, and gave them and their co-believers the right to abuse and exploit any minorities. However, this was the way of Serbia, Lebanon and Iraq – not of the United States of America, according to the U.S. Constitution. Conservatives everywhere are the same, and conservatism had been soaring in America: it’s hostility to the Constitution, and to the nation for which it stands.

On 14 April 2009, Adam Liptak headlined in The New York Times, “Reticent Justice Opens Up to a Group of Students,” and reported on Scalia’s fellow far-Right jurist, Clarence Thomas, “reminiscing fondly about seeing ‘a flag and a crucifix in each classroom.’” If the basis of the law is morality, and the basis of morality is one’s personal religion (whatever that happens to be), then Christ and the crucifix will naturally be the actual “constitution” a devout Catholic such as Clarence Thomas will place at the basis of all our laws, even if this violates the oath of office he took in order to win his post. Thomas, also naturally, agreed with Scalia on almost all Supreme Court decisions.

Scalia stated his very influential supposed “theory” of Constitutional jurisprudence in his 1997 A Matter of Interpretation: Federal Courts and the Law, in which his view was also debated by a few legal theorists. Scalia said that his way to understand the Framers’ original intent wasn’t to examine the discussions they or the public had had at the time that led to the clause which is now being interpreted, but instead to examine only the way that the particular clause was understood and interpreted by the public in its own time, however burdened by pre-democratic and now-archaic cultural prejudices (especially by religious preconceptions) this might be. He openly asserted his personal deference to cultural traditions, especially to old ones; and he thereby repudiated the revolutionary character of the U.S. Constitution and of the American Revolution that had led to it. He asserted that democracy consists of majority-rule, and that any protection of the rights of a minority from encroachments by the majority should therefore be allowed only to the extent that the Constitution (as understood at the time by the public) unambiguously asserted such a minority right. (Like any extreme conservative, or fascist, he was viscerally against minority rights, especially when religion was involved.) His essay ignored all Constitutional provisions (such as the Preamble, the Constitution’s Sovereignty Clause) that contradicted his theocratic prejudices. As Ralph A. Rossum subsequently noted in his internet-posted essay “The Textualist Jurisprudence of Justice Scalia,” Scalia’s doctrine became so influential that Senators and Representatives were now widely being guided by it in their drafting of laws. No one publicly pointed out the false, and even treasonous, aspects of Scalia’s theory of Constitutional jurisprudence. It won the day, because of the victory of conservatism in U.S. political culture after 1980 – the Republican dominance that has cursed this country since 1980. Liberals, being merely diluted conservatives, many of whom themselves were religious, had nothing to offer in the way of any theoretical alternative to Christian theocracy – they just wanted it to be “liberal.” (Maybe “Sermon on the Mount” passages, instead of the ones favored by Republicans.) A highly organized aristocratic movement exists in the U.S., which agrees with Scalia about the moral authority of government coming from the Lord above, instead of from the people below.

As inJustice Scalia so subtly phrased the matter during his 25 January 2002 speech at the University of Chicago: “It is easy to see the hand of Almighty God behind rulers whose forebears, deep in the mists of history, were mythically anointed by God, or who at least obtained their thrones in awful and unpredictable battle whose outcome was determined by the Lord of Hosts; that is, the Lord of Armies. It is much more difficult to see the hand of God or of any higher moral authority behind the fools and rogues – as the losers would have it – whom we ourselves elect to do our own will.” The electorate, to Scalia, is composed of “fools and rogues” who vote for “fools and rogues.” Of course, his contemptuous “we” was intended to refer, with only a fake modesty, to himself; but actually to such people as had only recently voted for the “fool” or “rogue” Al Gore, whose candidacy Scalia himself had terminated barely more than a year earlier, in 2000, and certainly not to theocrats like Scalia himself – who knew better than to do such a thing as to vote Democratic (or to validate the votes from the people who did). That statement, of faith in The Almighty, instead of respect for democracy and commitment to Scalia’s own oath-of-office, expressed extreme hostility against what America’s great Founders had established, and Scalia exhibited his determination to do whatever he could to destroy their handiwork. Scalia reflects feudal values, the values that America’s Founders waged war against and defeated.

The war within the Supreme Court is between theocrats such as Scalia, whose ideology is actually treasonous theocracy, versus liberals, who don’t have any ideology at all, and who are therefore unable coherently to defend the U.S. Constitution against the theocratic assaults on it coming from the other side of the Court.

Scalia is relying upon there being enough such traitorship still at the Court, for him to be able to win the day on Hollingsworth v. Perry. He is playing a desperate game, and the question is whether Anthony Kennedy, who has written some things on the opposite side of it, will cast that aside and now go all-in for feudalism, or instead join the liberals on this and just kick this can further down the road. I predict the latter: a technicality will be found to avoid ruling on the Constitutionality of bans against gay marriage. Maybe the group that is bringing the case will be determined not to have legal standing to do so.


Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.

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  • When I was much younger, fascinated I read constitutional law books. Now I find all the interpretations in them subservient to what I read about epistemology and human nature. More importantly, mostly what I read and find credible about epistemology and human nature comes from books published coincidentally to the American and French Revolutions, or before each of them.

    No one alive today is equipped to think at the same level as those who penned the Constitution. It’s just not possible. All the arguments I read that base their conclusions in the Constitution, seem to me a bit shallow and insignificant. Epistemology and human nature are far more important.

    Similarly, no one alive at the time the Constitution was penned could possibly have imagined what realities would creep up on humanity and make life living in the Twenty-first Century what it has become. (These men then dueled with swords and pistols. They thrashed each other viciously with hardwood canes.)

    When I read,– “The electorate, to Scalia, is composed of “fools and rogues” who vote for “fools and rogues.”” — I am vastly encouraged that men such as Scalia are still alive and willing to express the truth about democracy.

    When I read, — “Scalia’s presumed source for the Constitution’s “moral authority” isn’t an overstatement; it is false.” — I recognize that the author of this article is entirely unschooled in epistemology. The author is apparently an empirical ideologue, blind to the nature of reality, which includes an infinite complexity, -that is infinitely manifold. Our author here honestly believes he can comprehend the entirety of the Universe, and pronounce good and evil, truth and untruth, as well as right and wrong. He does this as an ad hoc, seat-of-the-pants scientist, without even the slightest of inklings that science is but a meandering fool with but the bludgeon of trial-and-error in our infinitely complex reality that surrounds us all 24/7.

    When I read, –“The Preamble then immediately proceeds to itemize the purposes for which the Constitution and thus the entire Government of the United States serve: “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense,” and now come the two kickers, “promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” (America’s government officials are told right there whom they are obligated to serve – “the people” – and how: these officials must “promote the general welfare, and …,” and they are not obligated to serve God or anything else.)” — I am forced to point out, this interpretation of the very words quoted -entirely misses the most important point of the quote.

    The most important point is the most important moral statement that can be made. That statement is that we have a duty to all -our progeny-. This is not just a duty to our own children. This is a duty to the future. And this duty to the future is the first in the ascent epistemological reality we all are going to have to come to grips with. Our forefathers has some sense of it. But we live in an age, when we recognize, WE THE PEOPLE could really mess things up and end it all, if we get too carried away with the false sense of our own competence that seems to assume some omniscience, and incredulous understanding of the infinite reality that makes our reality.

    The author acts as if he is speaking to the ZeitGeist, perhaps even Zarathustra. I am just speaking to those readers perusing the hackneyed comments. Neither the ZeitGeist nor Zarathustra will read he today.

    Men are just not that smart to attract the attention of immortal consciousnesses, not Supreme Court Justices, not bloggers, and not comment posters either.

    I’ll not take on the vogue fashion of tolerating homosexuals, and even supporting gay marriage. I’ll tell you where I come down though, on my way to making an epistemological and moral statement thereafter.

    I don’t think young men should be educated by women. I don’t think young men should be educated by homosexuals. I do not think young men have all the answers. But I do know, young men are made uncomfortable by both women and homosexuals. They should not have to suffer through this sort of thing in the name of tolerance, which is but a fictional moral edict.

    Tolerance is in vogue lately. I am highly against teaching tolerance to the extreme it has come out of the closet in our shallow society today. I am very intolerant. I am a human being.

    The same people, or some of them anyway, who proclaim they are for gay marriage, are also for the legalization of drugs. This too is about being tolerant.

    But I am against legalizing drugs, even marijuana. Why? Because I am opposed to allowing dopers to walk down to the corner on Friday night with enough legal dope in their pocket to debauch every kid in town. There’s got to be a rational limit to tolerance. In the Eighteenth Century when the Constitution was written, tolerance was only what you hoped your fellow man would offer to you -if you behaved yourself.

    I am not in favor of letting some flaming-faggot stand up in front of class full of high school freshmen, while letting it all hang out. It’s just my bigotry, I guess. But I don’t want to put young men through this sort of ordeal for the sake of -tolerance-. I don’t want some guy who’s going to bat his eyelashes at all the young men in an eighth grade class allowed anywhere near a school. I don’t care if the guy is gay. If he cannot behave himself, then he doesn’t belong teaching school.

    If he wants to dress up in a wedding dress, then that’s his choice. But if pictures of him surface on the Internet in his wedding dress, then he ought to look for another profession, something other than teaching school. Why? Because it’s bound to make some kids feel very uncomfortable.

    And I think we all have a moral duty to make sure the future doesn’t include that sort of behavior in the acceptable column, regardless what some hackneyed Constitutional law expert might try to rationalize in a blog article.

    • Eric Zuesse

      When Don Robertson says “It’s just my bigotry, I guess,” I agree with him on that, and I shall say further that I find him less repulsive than I find Scalia, because Robertson is far more honest than Scalia is. If Scalia had been as honest as Robertson is, he’d never have made it to the Court where he now sits.

      • Mr. Zuesse,

        Let me suggest, ironically, that it is your testosterone that makes you think you’re clever enough to cite one sentence I wrote in my long blog comment, and rely on that to justify your very long, buckshot-logic pro-gay-marriage rant.

        Let me suggest to the readers here, that they might consider the context of that one sentence Mr. Zuesse cites. Quoting myself, “I am not in favor of letting some flaming-faggot stand up in front of class full of high school freshmen, while letting it all hang out. It’s just my bigotry, I guess.”

        Mr. Zuesse is clearly standing atop his populist soapbox shouting at the populist wind. Am I to be complimented that Mr. Zuesse finds me less repulsive than he finds Scalia -as he says? No, he uses me like a straw man, to again assail Scalia importunately.

        Mr. Zuesse, you may think humanity has -forever- left behind those times when homosexuality is considered a mental illness that leads to criminal behavior. The wind will shift again. It always does.

        But again, Mr. Zuesse, you have a common educational deficit in your training. You must come to a better understanding of human nature, if you are ever to amount to anything more than a shouter that elicits the trade winds of change in exchange for your ridiculous assumptions about how to affect change.

        As a human male, you will not affect the change you seem to anticipate by standing up in front of a bunch of adolescent boys dressed in your drag-queen best. Your bizarre, dream-like ambitions should not be tolerated -for your own safety, as much as for the consideration of what we each know it feels like to be an adolescent male human.

        Think about human nature, Mr. Zuesse. These kids throw rocks at girls! So, stop telling me about your right to be a drag queen in every social situation. You have no such right.

    • jan tellit

      Long longwinded but you made your points quite well especially the notion that we our actions & decisions must be made with an eye towards our posterity or that ruling should promote the general well being of a people governed. Agree there must be limits upon tolerance even if it means being called names such as, “hater” or “bigot.”

  • Thank you, Eric; impressively argued!

    My understanding of the case law for state-level highest courts is that each ruled to uphold same-sex marriage under the state’s equal protection language. The compelling argument seemed the scientific evidence of same-sex attraction found as prima facie biological rather than having anything to do with choice. Of course, states responded by changing constitutional language.

    On a humorous side of the argument for same-sex marriage, this 2-minute threat from gay men that they will marry our girlfriends if we don’t let them marry each other:

    And three minutes from gay women threatening to marry straight women’s boyfriends:

    • Eric Zuesse

      Thanks, Carl, for the appreciation. And for those videos — very funny.

    • Abbey

      Sweet Carl. Now you’re cool too. So cute. Now you are in the “in” crowd. You must be proud. By the way, I’m not a bigot. But I am someone who sees the “gay agenda” as overall harmful to our society and its progeny. It’s the push to make the abnormal mainstream within the structure of the traditional family unit that destroys rather than enhances what is slowly becoming an unstructured society that is producing children without God and people who place their sexual practices above all. I have no problem with anyone’s choice, but don’t wreck the culture to make your choice your god and force your god on my children. History shows the direction we’re taking as a country leads to its destruction. Call me a hypocrite, but history will prove me right. Unfortunately it will be too late by then. You and Eric will have played your part in that destruction.

  • Abbey

    Okay. You’re cool with institutionalized gay marriage. Now that you feel good about yourself and how cool you are, why don’t you get back to focusing on ways to prevent the destruction of this country by institutionalized corruption instead of trying to find ways to portray how institutionalized same-sex marriage is the bedrock of the Constitution and the freedoms we hold dear. People can marry whomever they want; just don’t shove it in my face with another blessing by the corrupt collective of the state. You argue that we need to say goodbye to the last sacred institution we hold dear as we descend into tyranny. Interesting how the destruction of the traditional family and Christianity seems to go hand in hand with the metastasized state. Just a coincidence.

    • Eric Zuesse

      Abbey, despite your despicable assumption that someone who loathes bigots must necessarily be a member of a particular group that suffers their bigotry, I actually have no homosexual inclinations myself, but I don’t think that that makes me any better than someone who happens to be “gay” (a term I don’t like, because lots of homosexuals have to deal with bigotry from disgusting people like you, and that will make them sad, if not worse, but because of you, not because of them). Bigots are the problem of bigotry; the victims of their bigotry are not the problem of bigotry.

      Your implication that it’s not possible to find both bigots like you disgusting, and crooks like the banksters (and Geithner, and Bush, and Obama, etc.) disgusting, is simply false; I find all of you disgusting, because all of you make things bad for the entire nation, and are curses upon the entire society in which we all live.

      Boy, you got to the end of my article and didn’t learn or understand a thing from it. Wow! And then you issued a comment about it. Yuk!

      • Abbey

        Boy, you got to the end of my comment and wrongly assumed I’m a bigot, and that I assumed you are gay. The corrupt court system, in its inability to follow the Constitution, has no business deciding for the people who can marry whom, and the fact that this is a national debate while our country is disintegrating shows to what degree the people have lost sight of what is important. It’s a distraction. You assume too much.

        • jan tellit

          Uneducated Abbey the states already have the duty of deciding who can marry—and who cannot. The Constitution is not a one size fits all which necessitates the need for interpretation. It should never be a national debate but has always been properly left up to the state and the citizens of those states. If corrupt state legislatures hadn’t gone rouge against the will of its constituents this matter would not be up for debate. Homosexuals have no God given or constitutional right to marry. The matter of sodomy is not equal to marriage nor is it of benefit to the nation or humanity. What is the function of sodomy & homosexuality? To breed death, perverting the sex act and the unhealthy, depraved use of the body in abnormal and destructive sexual practices equal to degradation. The fact that the matter is being ruled upon is a shame on this nation making USA the laughing stock of the world. This nation is in massive decline.

      • jan tellit

        Zuesse hmm you’re name rhymes with Dr. Suesse—it’s official you’re a distastefully bad joke. Yeah right…… You have no homo inclinations? Please stop lying to yourself. It makes it impossible to do a fair analysis. The only bigot here is you. I have never read a more biased & poorly reasoned piece of clap trap in my lifetime. Your analysis is full of Scalia’s intention is pure foolishness based upon childishly unreasonable assumptions. Your view of Scalia & other conservative Supreme Court justices is just perverted w/o any logical understanding as to the foundation of conservatism. Holding on to trusted foundations, values & principles because they are proven to benefit the many. Liberals rebel against these values, foundations & enduring principles for the sake of rebellion. Examine the many changes brought within the last 45 years by liberals. One would be hard pressed to say these changes have made the nation greater.

  • gozounlimited

    Love creates a Marriage….what one does with ones body is between consensual adults and God…. Mr. Scalia suffers from glimpses of his own damnation, projecting his religious fervor on the affected populace, rather than rising above his own sins.


    While NOT Catholic, and as a member of the Church of Jesus Christ of Latter-day Saints, I merely point out that a revelation from God, Himself, documented in our Doctrine and Covenants, Section 98:4-10 and Section 101:76-80, & 97-98, that the Constitutional Law of the Land was given by God, Himself, “by the hands of wise men…” who were, “…raised up unto this very purpose…” The Founders were Inspired of God to write the Constitution, and “… as pertaining to law of man, whatsoever is more or less than this than this cometh of evil…” I would urge all of the readers of this commentary to study the full texts of Sections 98 and 101 of the Doctrine and Covenants! Scalia is closer to being RIGHT than you give him credit. We also have published a Declaration to the World on the Family, which outlines the principles on Marriage and the Family, which would also be of great import to the Supreme Court on these issues. Consider it an “Amecus” brief on the subject…

  • Democracy, much as the author wants us to believe otherwise, is not what America is about; freedom is. As the Framers were wont to say, “Democracy is two wolves and a sheep deciding what’s for dinner.” I believe that this particular phrasing is Franklin’s, but it reflected sentiments widely held in that generation.
    Freedom and democracy are not synonyms; one names a condition and the other names a process. And the process is naught but tyranny by majority, thus the wolves and sheep description.

    The Revolutionary War was fought over intrusions and predations. Some of the Founders hoped that they’d be the pinnacle predator, committing their own intrusions and predations–and strived for that. We still have that, evidenced amid banksters and disnational corporations who deign to rule, tipping and tilting the playing field in their favor by creating captive markets and by anti-competitive legislation as they buy off legislators and extort executive branches and judges.

    Others wanted to eliminate human on human predation and narcissism, seeing that in a political philosophy of non-initiation of force or harm is sustainability–the real kind–the kind that allows a society of wildly different tastes and personalities–a vibrant and creative, prosperous and world-leading society–to cohere and exercise, as necessary, the voluntary version of the social compact. This is what real liberals and libertarians, and some who mis-identify as “conservative” because the Republican Party, allegedly the “conservative” party, is more liberal in real terms than are the ones we call liberal and democrat.

    Yes, and there’s the crux: I describe the fight in the court to be a contest of narcissisms by well-schooled but not well educated wannabe titans who vainly but passionately hold on to a false dichotomy, both sides of which serve a tyrannical, mercantilist takeover of U.S. law, an insurrection against not only the Constitution, but all supporting concepts of liberty and self-determination.

    Thus, I rather think that this is incredibly one-sided and shallow: “The war within the Supreme Court is between theocrats such as Scalia, whose ideology is actually treasonous theocracy, versus liberals, who don’t have any ideology at all, and who are therefore unable coherently to defend the U.S. Constitution against the theocratic assaults on it coming from the other side of the Court.”

    There’s no lack of ideology on the so-called left of the court; it’s just an unprincipled, narcissistic pragmatisticalism (yes, I make up words as I go, to convey something more) which doesn’t show much foresight. It makes for unsustainable social structure just as does religious narcissism. The attacks on the Constitution come from both “sides,” such as they (sides) are: inconsistent, in-cogent, knee-jerk–designed to be feckless and easily turned into coercion.

    My lifestyle is quite conservative: no drugs, no alcohol, monogamous hetero, gainfully employed. I cost the society little. Another, whose lifestyle is feckless or dangerous, can only cost us if we extend–or are forced to extend by socialistic laws–our hand in assistance. It is not right to let feelings of guilt for not helping others be fended off by coercing yet another (many others) to do what we feel guilty for not doing on our own.

  • Yo George, where did this Zuesse guy come from? I’ve been reading the blog a long time and I’ve never read more asinine drivel anywhere.

  • Casper

    You don’t have to be a god-botherer to find homosexuality revolting. Its clearly just a form of mutual masturbation between consenting adults. Watching a pair of them go at it is like stepping in dog shit. Why do these people want to force gay marriage onto society? Because then they can pretend to be normal rather than the perverts that they know themselves to be. Its pretty straightforward really.

  • countyguard

    The Post is oblivious to original intent, and the constitution. Gay marriage is NOT for the federal courts to decide. The Constitution WAS based on Judeo-Christian beliefs… that is easily proven. Scalia’s actions could be the start of more pressure against federal encroachment into our rights and freedoms, or the demise of any laws and rights for the people at all. Better create your own “Liberty Zones” and prepare to defend your constitutions and each other.

  • Irv Spielberg

    Is there a connection between beautiful New England and entire American cities turned into smoking rubble? There is.

    Take same-sex marriage. I would have guessed that a “sin” city (San
    Francisco? Las Vegas?) would have been the first to legalize it.

    Oddly it’s been the place where America started that’s wanted to be
    the first place to help bring about the end of America and its values!
    It’s been a Nor’easter of Perversion (helping to fulfill the end time
    “days of Lot” predicted in Luke 17) that began
    in (you guessed it) Boston in 2004.

    New England has gone from the Mayflower Compact to the Gay Power
    Impact, from Providence to decadence, from Bible thumpers to God
    dumpers, from university to diversity to perversity, and from the land
    of the Great Awakening to God’s Future Shakening that
    will make the Boston bombings look like Walden Pond ripples by

    The same Nor’easter has been spreading south and as far west as
    Washington State where, after swelling up with pride, Mt. Rainier may
    wish to celebrate shame-sex marriage by having a blast that Seaddlepated
    folks can share in lava-land!

    The same Luke 17 prediction is tied to the Book of Revelation which
    speaks of the cities that God will flatten because of same-sexism –
    including American cities – a scenario I’ll have to accept since I can’t
    create my own universe and decree rules for

    I’ve just been analyzing the world’s terminal “religion” that has
    its “god,” its accessories, its “rites,” and even a flag. It’s an
    obsession that the infected converts are willing to live for, fight for –
    and even die for!

    Want more facts? Google “God to Same-Sexers: Hurry Up,” “Universal
    GAYety is Coming,” “FOR GAYS ONLY: Jesus predicted,” ” ‘Jesus Never
    Mentioned Homosexuality’ – When Gays Have Birthdays…,” “Harvey Milk
    Stamped ‘Out’ Forever” and “The Background Obama
    Can’t Cover Up.”