Wednesday, January 5, 2011

New York Times on Scalia's Attack on Equal Protection Clause: "Outlandish"

As I expect many readers of Bilgrimage already know, Supreme Court justice Antonin Scalia began his new year with a bang by declaring that the U.S. Constitution's equal protection amendment, the 14th amendment, does not guarantee women and gays freedom from discrimination.  As a constitutional literalist, Scalia does a mind-reading act to discover (and then reveal to the rest of us) what was in the mind of the writers of the constitution when they wrote the document.  Never mind what the actual words say.

There are various ways to look at what Scalia is hoping to accomplish with this  new year's salvo.  For my money, here's at least part of what's going on: as the cultural shift that is bringing rights long denied to gay and lesbian human beings proceeds in developed nations, Scalia is seeking to lay a judicial foundation for denying those rights in the U.S.'s court of highest appeal, when appeals of legislation or lower judicial decisions re: these rights finally reach the U.S. Supreme Court.  Scalia is seeking to put into place a screen that hides from view one of the most significant foundations for equal rights for all citizens in the U.S., regardless of inborn characteristics that separate citizens into various groups--the 14th amendment.

It should be noted that Scalia's attempt to develop this screen and justify judicial activism against the human rights of LGBT persons fits hand and glove with the rhetorical ploy I have discussed in the past two days, the ploy now being used by top Catholic pastoral officials.  This is the ploy of claiming that, in denying the human rights of gay and lesbian persons in every way possible, the Catholic church is actually defending human rights.  And that it, and not members of minority communities it attacks, is the victim of discrimination.

Scalia is, after all, Catholic, an extremely influential Catholic voice of the American political right.  Members of his family exercise significant influence throughout the U.S. Catholic church.  Scalia's son Paul, a priest, is, for instance, chaplain of the group Courage, which encourages Catholic gays and lesbians to view their sexual orientation as a "problem" to be overcome by prayer and self-denial, and to live lives of lifelong chastity, without intimate, fulfilling love relationships with members of their same sex.  

Fr. Paul Scalia pastors a beltway Catholic parish many of whose members are neo-conservative luminaries who exercise disproportionate on the thinking of the Catholic intellectual and media elites of the center.  Even at its most far-fetched and, their voice receives an attentive hearing in academic and mainstream media circles, as "the" Catholic voice.  Follow the Catholic blogs of the American Catholic intellectual center, and you'll inevitably run across highly regarded, persistent voices from Scalia's parish, offering the American Catholic center Scalian political and religious views as if these views represent orthodoxy itself.  And because of their beltway influence, these right-wing Catholic voices go largely unchallenged in the dialogues of the American Catholic center.  They are allowed to posture as "the" Catholic voice, no matter how irrational and ill-grounded their "Catholic" views are.

Scalia's voice counts, in other words.  It counts in the minds of many of the guardians of the normative media conversation of our culture as the authentic embodiment of Catholic values.  By speaking as he has done re: the issues of women's and gay rights as this new year begins, Justice Scalia is seeking to situate the authentic voice of the U.S. Catholic church--the only possible Catholic voice, from his standpoint and that of the hierarchy--to the right.  He is seeking to undercut Catholic arguments that women and gay and lesbian human beings deserve human rights, and political arguments that this theological appeal to human rights is mirrored in the U.S. constitution.

And so I am delighted to see the New York Times today countering Scalia's grotesque misreading of the 14th amendment as "outlandish," and noting,  

No less dismaying is his notion that women, gays and other emerging minorities should be left at the mercy of the prevailing political majority when it comes to ensuring fair treatment. It is an “originalist” approach wholly antithetical to the framers’ understanding that vital questions of people’s rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society.

The 14th amendment was enacted precisely to provide a safeguard, in one of the foundational documents of American democracy, against the argument that Justice Scalia is implicitly putting forth in his denial of what the equal protection clause really means.  This is the argument that, since the constitution was written by white male property owners, that privileged class of America citizens deserves special protection under law, while the onus is on all other disenfranchised and marginalized minority groups is to prove that they deserve any protection at all.

Or that their humanity is equal to that of white male property owners.  

And the real theological question, the most significant one of all, to ask about Scalia's reading of the constitution is this: how on earth does he get from Catholic social teaching  (or the gospels) to a social theory that privileges those who are already rich and powerful, and seeks to continue the stigmatization of those without power and privilege?  And how does the Catholic hierarchy today think it can maintain any credibility at all as it increasingly seeks to align the church with the rich and powerful of the world against those without power and privilege, while maintaining that this alliance serves human rights?

2011 is shaping up to be an interesting year, when it comes to the ongoing realignment of the Catholic church, from its top echelons down, with a neo-conservative ideology and social agenda that find themselves increasingly embattled in many parts of the developed world.  What remains to be seen is how willing rank and file Catholics will be to go along with this realignment.

The graphic: Justice Scalia and Cardinal Archbishop Donald Wuerl, Washington, D.C., at that diocese's "Red Mass" in 2008.

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