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Scalia: the Robert E. Lee of the Culture Wars

“Scalia Dead Following 30-year Battle with Social Progress.” So read the headline of the satirical Onionnewspaper in response to the news of the death of Supreme Court Associate Justice Antonin Scalia. The “Twitter-verse” was also aglow with irreverent responses to Scalia’s demise. Filmmaker Drew Emery, for example, tweeted, “I will not at all be surprised when the coroner confirms the cause of death as marriage equality. #Scalia.” If you have progressive friends on Facebook, you probably saw many sentiments similar to these.

Conservatives, of course, reacted to such expressions with righteous indignation. At the Republican Presidential Debate in South Carolina on Saturday night, candidate Ben Carson said, “We need to start thinking about some of the divisiveness that is going on in our country. I looked at some of the remarks that were made after finding out that Justice Scalia had died and they were truly nasty remarks.” The conservative Daily Wire website posted a headline that read: “Liberals Disgustingly Tweet Glee at Justice Scalia’s Death.”

Are these gleeful reactions to Justice Scalia’s death morally defensible? Are those reacting this way failing to treat the man with the level of dignity he deserves?

As I thought about these questions, my mind drifted – as it often does – to the ideas of the great abolitionist Frederick Douglass, who I have spent the last decade or so studying. More specifically, I thought about an editorial frederickdouglassDouglass published in October 1870 called “Death of a Perjured Traitor.” The occasion for the editorial was the death of Robert E. Lee, who was “one of the chief rebel generals” in the Civil War. Many political and cultural elites reacted to Lee’s death, Douglass wrote, with “ostentatious and noisy exhibitions of sympathy and grief.” Some of these elites praised Lee’s “great public virtues” and others said whatever one thought of Lee politically, he ought to be remembered for his “rare private virtues.”

Douglass, as you may have guessed from the title of his piece, was having none of this. When someone of Lee’s public stature dies, what matters is not how he performed in the world as a husband, father, brother, or friend. What matters, Douglass wrote, is what Lee stood for as a public man. Considered in this light, Douglass had “no sympathy to waste” and “not a regret to express over the death of this arch apostate.” Lee’s words and deeds during and after the Civil War revealed that his primary devotion was to undermining the dignity of African Americans and he had therefore earned the disrespect of those who care about “liberty, justice, and humanity.”

Antonin Scalia was the Robert E. Lee of the American culture war. He devoted the words and deeds of his public life to championing a set of ideas that placed him firmly on the conservative side of the many battles of that war. Like Lee, Scalia often found himself on the losing side and, like Lee, he “never ceased to mourn over the lost cause.”

Although Scalia’s views of abortion and affirmative action did much to establish his reputation as a conservative culture warrior, it was his resistance to gay rights that proved to be his defining battle. In the 1996 case of Romer v. Evans, the Supreme Court considered the constitutionality of a Colorado law that permitted local jurisdictions to allow discrimination on the basis of sexual orientation. The majority of the Court found this law to be inconsistent with the Constitution’s promise of “equal protection of the laws,” but Scalia offered a blistering dissent. “Of course,” Scalia wrote, “it is our moral heritage that one should not hate any human being or class of human beings.” But Coloradans weren’t guilty of hating a class of human beings, he proclaimed, they were simply expressing animus toward “homosexual conduct,” which like “murder,…polygamy, or cruelty to animals” has been the subject of “centuries old criminal laws.”

In the 2003 case of Lawrence v. Texas, the Court considered the constitutionality of a prohibition on “homosexual sodomy.” While the majority of the Court found the law to be inconsistent with the protection of liberty provided by the Fourteenth Amendment of the Constitution, Scalia once again found himself in dissent. The Court, he declared, was signing on to the “homosexual agenda” by depriving the people of the states the opportunity to express their “moral opprobrium” of homosexuality, which they believe to be on par with “fornication, bigamy, adultery, adult incest, bestiality and obscenity.” If the people of a state want to lock adults up for engaging in consensual sexual conduct, Scalia said, there was nothing in the Constitution stopping them from doing so.

At the conclusion of his Lawrence dissent, Scalia expressed worry that legal prohibitions of same-sex marriage would soon find their way to the Court and the cases of U.S. v. Windsor and Obergefell v. Hodgesproved him right. In Windsor, which dealt with the constitutionality of the federal Defense of Marriage Act, Scalia dismissed the idea that the exclusion of same-sex couples from the protection and recognition of marriage demeaned or humiliated anyone. The majority was simply asserting its legitimate power to “enforce traditional moral and sexual norms” by limiting marriage to one man and one woman. InObergefell, the Court struck down state prohibitions on same-sex marriage and, again, Scalia dissented. The majority decision was little more than a “judicial putsch” – a “naked” assertion of power in defiance of “the freedom of the people to govern themselves.”

In the realm of gay rights, Justice Scalia committed himself – time and again – to staking out positions that denied the equal dignity of all human beings. And it was this record, more so than any other aspect of the voluminous writings and decisions he leaves in his wake, that have inspired some to react to his death with irreverence and even hostility. When these decisions came up during public discussions or interviews, Scalia seemed to take a good deal of pride in his position as a curmudgeonly dissenter who was acting in accordance with his understanding of judicial duty.

Robert E. Lee and Antonin Scalia staked their legacies on conceptions of duty that put them at odds with movements that sought to move this country closer to the recognition of the equal dignity of all human beings. It is upon these views of duty that they, as public men, ought to be judged. They deserve nothing more and nothing less.

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Nicholas Buccola’s books include The Political Thought of Frederick Douglass, The Essential Douglassand The Fire is upon Us: James Baldwin, William F. Buckley Jr., and the Debate over Race in America. He is the Elizabeth and Morris Glicksman Professor of Political Science at Linfield College. 

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