In his commentary in the New Yorker today on the arguments in yesterday's Obergefell v. Hodges Supreme Court hearing about same-sex marriage, Jeffrey Toobin zeroes in on a "shocking, ugly moment" that occurred when a spectator stood up and shouted,
If you support gay marriage, you will burn in Hell! It’s an abomination!
The man, Rives Miller Grogan (who has a history of such disruptive outbursts that includes an incident at President Obama's 2013 inauguration), was carried by the guards from the courtroom and charged with making a "harangue" intended to interfere with the administration of justice.
But as Toobin maintains, that was not the ugly part of this story — not Grogan's harangue. Toobin:
That wasn’t the ugly part, though. In the quiet moment after the man was removed, as his shouts vanished into the hallway, Justice Antonin Scalia filled the silence with a quip. "It was rather refreshing, actually," he said.
Toobin goes on to note that it's very likely what Scalia wanted to signal with his ugly joke was his sympathy for Grogan and Grogan's outburst. As Toobin points out,
In questioning Bonauto, Scalia further established his reputation as the Fox News Justice, who appears to use conservative talking points to prepare for oral arguments. Clearly drawing on a reservoir of outrage about the revision of an Indiana law that would have effectively allowed businesses to refuse to do business with same-sex couples, Scalia tried to pick an example that would motivate his ideological supporters, if not his colleagues. "Is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if, indeed, this Court holds that they have a constitutional right to marry?" he asked Bonauto. "Is it conceivable that that would be allowed?" Bonauto and Justice Elena Kagan shut down this silly idea with dispatch. Under the First Amendment’s free-exercise-of-religion clause, it’s long been clear that ministers can perform weddings (or refuse to perform them) for anyone they want.
A number of others commenting this morning on yesterday's Supreme hearing pick up on the same theme: the Supreme men, several of them, appear intent to function as mouthpieces for the very lowest, crudest, and worst of today's right-wing media outlets. Here's Jim Newell at Salon:
[D]uring yesterday’s arguments, we got another reminder that our Supreme Court is dominated by five conservative justices who could switch places with five World Net Daily commenters without anyone noticing the difference. Did you know that MARRIAGE has been between ONE MAN and ONE WOMAN for 100 TRILLION YEARS and now BIG GAY wants to REDEFINE it? When JOHN ROBERTS looks in an OLD DICTIONARY, he doesn’t see “ADAM AND STEVE” under MARRIAGE.
According to the New York Times' report, Justice Samuel Alito wondered aloud whether marriage between same-sex couples would lead to groups of four people getting married, while Justice Antonin Scalia said some clergy might be forced to perform wedding ceremonies against their will.
Not to put too fine a point on this, but these are lazy, ridiculous arguments. Supreme Court standards have fallen, but this is cheap nonsense, even from far-right justices. It should be obvious, for example, that marriage equality is fundamentally different from polygamy. It should be equally obvious that there's literally nothing to suggest clergy would be forced to do anything, ever – and over a decade after same-sex marriages began in the United States, there are still zero examples of religious leaders being compelled to officiate any union.
At Slacktivist, Fred Clark flatly calls Scalia's bluff here, and concludes that Scalia was lying when he maintained that legitimating same-sex marriage nationwide would lead to clergy being forced to perform same-sex weddings, and knew he was lying as he posed this question: Fred writes,
The difference between Justice Scalia and Justice Kagan here is not that Scalia is Catholic while Kagan is Jewish. Nor is the difference that Scalia is conservative while Kagan is liberal. The difference between them here is that Justice Kagan is being honest and arguing in good faith while Justice Scalia is not. He is saying something he knows full well is not true.
Scalia is, in short, lying. He knows it. We know it. Everyone knows it.
By contrast, as Dan Roberts indicates for The Guardian, while most of the male members of the court dithered Chicken-Little style, watching for the skies to fall (my image, not Roberts's — and Justice Thomas was totally silent during the hearing, I might note), Ruth Bader Ginsburg confidently cut through the B.S. and eviscerated one silly, insubstantial argument after another. As William Saletan notes for Slate,
Tuesday morning, during the Supreme Court's oral arguments in Obergefell v. Hodges, Justice Ruth Bader Ginsburg raised a good question. What should states do, she asked, when a 70-year-old straight couple asks for a marriage license? "You don’t have to ask them any questions," she pointed out, to "know they’re not going to have any children." If marriage is for procreation—and gay couples are excluded for that reason—why aren’t old couples excluded, too?
The argument put forth by the amicus briefs in one state after another seeking to continue excluding same-sex couples from the right of civil marriage maintains that marriage is all about procreation, and since the gays can't procreate, well . . . .
I find Scalia's observation that the crazed outburst of a right-wing nutcase screaming about hell and abomination was refreshing is quite telling. The position Scalia is defending in this and other matters (see: Burwell v. Hobby Lobby) is that when religious folks — of a hard-right bent, it goes without saying — scream and shout and run about, everything should shut down until they have gotten a hearing and, preferably, gotten their way.
The position that Scalia and his right-wing male colleagues on the court (all Supreme Catholic men) want to defend is that, even when it maintains the minority view on a controversial social issue — or especially when it maintains the minority view — right-wing religion wedded to right-wing politics should carry the day in court and culture. It should control what the rest of us do. It should be allowed to control what the rest of us do.
Because. Because the Supreme Catholic men want things to work that way.
This is not American democracy. This is theocracy. This is why the founders of the country insisted on a wall separating church and state.
The photo of Grogan disrupting yesterday's hearing is by Dana Verkouteren for AP and appears in this TPM posting about yesterday's hearing.