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Yesterday's Double Defeat

By Fr. Paul Mankowski, S.J. (articles ) | Jun 27, 2003

Not surprisingly, some of the most tersely pointed commentary on the culture wars can be found in Justice Scalia's dissents, each of which may stand as a battlefield monument to the vanquished in the serial defeats of the Culture of Life -- not, however, that Scalia (qua justice) is himself a combatant in the wars. His argument, apparently audible only to fellow justices Thomas and Rehnquist, is that the task of a court is not to dispense justice to the people but to maintain the fair administration of that justice the people have democratically chosen for themselves -- i.e., by the laws they have enacted. In his Lawrence v. Texas dissent, after subjecting his colleagues' reasoning to withering criticism on specifically legal grounds, he once again laments the court's forfeiture of neutrality:

One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter.

This argument is a two-edged sword, as Scalia knows supremely well. He understands his job not as hieratic -- as a guarantor of justice-before-God -- but as narrowly judicial, as upholding the ordered rule of law. In practice, this will sometimes result in correct decisions Scalia the Catholic finds harmful to society. We might suppose Scalia doesn't think the Ratifiers regarded a right to expression by pornography as protected by the First Amendment, so by his standard it's up to the State or Federal legislatures to devise laws for the community here. He's constrained to uphold (or to decline to review) a statue permitting pornography even if he believes it will damage the community; and he's equilaterally obliged to uphold a law banning porn. By the same token, we have good reason to believe Scalia thinks human life is a God-given endowment that, when innocent, deserves protection, yet he doesn't think the Ratifiers enumerated this right, and therefore he is constrained (as he admits) to uphold state laws permitting abortion. This gets him in trouble with some Catholics who see his approach as ethical nominalism or legal positivism. Scalia might say: "I believe firmly that there ought to be a constitutional guarantee of the life of the unborn. But there isn't, yet. As a judge I have no privileged insight whatever into the meaning of Absolute Justice; I simply have to uphold the law in virtue of which I am seated. Until the Constitution is amended it is my duty to uphold the force of laws that sanction what I am convinced is an injustice to my fellow citizens and an abomination before God." It takes guts to hold this position, since it draws artillery fire from the ideologues of the Left (who see it as conservative self-interest, disguised), and from many co-religionists (who see it as ethical indifferentism). One might contrast the judicial theories of Gallio (Acts 18:14-16) and Caiaphas (Matthew 26:65).

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