Dispatches from the Creation Wars

Justice Scalia recently gave a lecture in Edinburgh, Scotland in which he compared judges, both in America and in Europe, to Ayatollahs. How did he come to this tortured metaphor? It isn’t pretty. The Telegraph reports:

“I don’t think that judges should do anything but interpret the meaning of texts that have been democratically adopted and give them the meaning they bore when the people adopted them,” he told me. “But what I have noticed increasingly in recent years is that judges – not just in my country, but internationally – have taken on this function of being moral arbiters for the world.”


Obviously, in light of this position, Scalia would obviously be harshly critical of a judge who interpreted the interstate commerce clause to apply to products that neither cross state lines nor are bought and sold and thus justify the Federal government to override state law in an area that the states have always controlled and arrest people for growing a substance it is legal for them to grow in that state solely because some people view the use of that substance as immoral.

Oh wait, that would be Justice Scalia himself in the Raich case, where he completely ignored the fact that those who wrote and ratified the interstate commerce clause would have been appalled at the intrusion of Federal power upon state prerogatives, especially when it interfered with a law passed by direct referendum in that state not once but twice. They would have been even more appalled that the power they gave to Congress to regulate interstate commerce could be distorted so thoroughly that it could offer the authority to regulate the growing of a product that was neither interstate nor commerce. And all to satisfy moral busybodies who think that allowing cancer victims to smoke pot to handle the nausea from chemotherapy will lead to jazz music and raping white women. Ayatollahs indeed, Mr. Scalia.

Here’s the primary example he used of how these “ayatollahs” operate:

Justice Scalia referred in his lecture to a British case about gay rights. In 1996, a man identified only by the initials ADT was convicted of gross indecency and conditionally discharged. Police officers who raided his home in Yorkshire had found video tapes showing him taking part in sexual activity with up to four other men. As the law then stood, homosexual acts were permitted only if no more than two people were present.

Backed by the campaign group Stonewall, ADT took his case to the European Court of Human Rights in Strasbourg. He claimed there had been a breach of the right to respect for his private life.

In response, the British government relied on an exception in Article 8 “for the protection of… morals”. But the Strasbourg judges rejected this argument, pointing out that ADT was “involved in sexual activities with a restricted number of friends in circumstances in which it was most unlikely that others would become aware of what was going on”.

Finding in ADT’s favour, they awarded him nearly £21,000 damages plus costs. As a result, no more prosecutions could be brought for group sex in private and gross indecency was abolished in 2004.

Justice Scalia was scornful about the Strasbourg ruling last week. “The court did not specify how many people had to be participating in the sexual conduct before it would cease to qualify as part of each one’s ‘private life’,” he said. “Presumably it is some number between five and the number required to fill the Coliseum.”

He noted that the case turned on a provision in the Human Rights Convention. “I take no position, of course, on whether the prohibition of sex orgies is necessary for the protection of morals. I do assert, however, that in a democratic society the binding answer to that value-laden question should not be provided by seven unelected judges.”

Ironic, isn’t it? By preventing the authorities from arresting and punishing someone for being gay, these judges are, in Scalia’s view, acting like ayatollahs. Really? Seems to me that they are in fact restraining those who wish to act like ayatollahs. Scalia, of course, voted to uphold laws that threw homosexuals in prison in the US too; how very ayatollah-like, don’t you think?

But here’s the irony that I rarely hear pointed out. Scalia, like most conservative originalists, decries “judge-made law” as well as even a hint of looking to another country for guidance on any legal matter in this country. Yet when a sodomy case comes before them, as for example in the now-infamous case in Alabama where Judge Roy Moore declared that the state should use its power to imprison or even impose the death penalty upon homosexuals, they invariably cite what? The British common law, which punished homosexuality.

They cite this age-old law as evidence that sodomy has been punished by “civilized society” for centuries. But what is the British common law if not judge-made law? And not only did it come from another country, it came from a country that we overthrew; those laws were made under the very royal system of justice whose chains we went to war to throw off.

I would love to hear Scalia’s answer on whether he thinks Loving v Virginia was decided correctly. He can’t possibly say that it was a bad decision by the court, but how could he possibly justify its rightness given his expressed criteria? Was that not a court deciding a controversial moral issue over the wishes of democratic majorities? He certainly can’t argue that the 14th amendment’s equal protection clause was intended to do away with such clearly disparate mistreatment because the framers of that amendment explicitly told the people that it would not overturn miscegenation laws. Someday I would love to be in a situation where I could ask Scalia that question.