Justice Scalia and Public Office

Much has been written about the dilemma of Red State county clerks and other officials who have religious objections to same sex marriage.  Are they required to issue marriage licenses to same sex couples?  And what are the consequences if they refuse?

There is actually a simple answer, according to Justice Antonin Scalia, which he articulated in response to a question about Catholic teaching and the death penalty:

“If I thought that Catholic doctrine held the death penalty to be immoral, I would resign,” he explained in a 2011 speech at Duquesne Law School.  “I could not be part of a system that imposes it.”

"There is no such thing as Catholic law," he continued. "The law is no different for a Catholic than it is for a Jew any more than it is different for a woman or a man or a white man or a black."

Justice Scalia is no friend of same sex marriage, but he does seem understand that the role of a public official is to adhere to the law, without regard to personal beliefs.  And if you cannot do that, well, find another job.

Comments

[anon]

And the point is?

Hint: Scalia is a monster, but he'll buckle under like a real trouper. Moral: the devil is capable of obeying the law to keep his job.

Wow. That's not much of a point, is it?

Why not write about celebrating gay marriages as a judge and then voting on the legality of such marriages everywhere?

Not that any SCOTUS justice would do that.

BTW, I don't think the issue is public officials in the minds of most FAIR observers (with whom, of course, you do not relate). And the issue is probably not with church officials, either. The issue seems to be hospitals, universities, and other religiously orientated organizations, and vendors who might vend but be unwilling to participate in a ceremony (e.g., a caterer, photographer, etc.), or a vendor of public accommodations, on the grounds of personal beliefs.

The question about whether sexual orientation is to be deemed a "protected class" wouldn't seem to implicate court clerks, who must obey policy or leave.

I really can't see how you can compare these officials to Scalia. The reason that you, and others, make his religion always a central issue, by constantly referring to his religion, which he clearly, as you note, has not followed to the letter in his decisions, is baffling.

And, it is no answer that he described the personal characteristics of the judges in the recent decision. He was clearly making a point about their insularity, and I don't recall him repeatedly focusing on others' religion the way that you and many others do to Scalia. It is sort of a below the belt and unseemly attack.

Your constant attacks on the integrity of others, especially those with whom you do not share POLITICAL agreement, and especially now on the grounds of religion in THIS instance, are actually becoming a bit ridiculous. YOu aren't pointing out that Scalia doesn't allow his religion to rule him; you, like many others, are just harping on his Catholicism for the sake of attacking him, and implying that he is a hypocrite to boot.

[Steve L.]

Cent Rieker: I deleted your comment because of the concluding clause in its last sentence, which was a much too personal insult to Justice Scalia.

You are welcome to repost everything else.

[Observer]

So it's OK for Oregon, Washington, and Colorado to ignore Federal drug laws, but it's not OK for an official in Texas to ignore Federal marriage laws.

Got it.

[anon]

Wow.

There you have it.

The open minded, tolerant, kind and conciliatory voice of modern "liberalism." Unlike one who might generalize about the views of county clerks in "Red States" as if no one in a "Blue State" could possibly feel the same way, this voice is more naked, more raw, more explicit in particularizing hate and vindictive malicious wishes onto the individuals with whom politics differ. (All the while claiming the high moral ground, of course.)

I don't agree with deleting comments (especially as done by a certain poster for particularly fragile and seemingly irrational at times reasons). Yet, the comment above does appear to be out of bounds.

[Cent Rieker]

Fair enough. Justin Scalia is no more than a intellectually dishonest talk radio windbag. Just look at his dissent in King, contradicted by his own words in Sebilius. (I trust this part was fair game).

As far as bounds, or hate, there isn't anything wrong with it. Anon doesn't care for my politics. I don't care for anon's, or the red state county clerk who thinks it's their job to approve or disapprove of someone else's lifestyle. I also don't claim a moral high ground- (like it or not) law and politics are more like MMA than a Sunday round of golf.

[Steve L.]

Note: The county clerks who have been reported to object to issuing same sex marriage licenses have been in Texas, Louisiana, Kentucky, and Nebraska. It is not an insult to call them Red States.

Note also: There is no obligation for states to enforce federal drug laws. That is an aspect of federalism, or the "non-coercion" doctrine, which Justice Scalia himself applied to gun laws in Printz v. United States.

On the other hand, state and local officials do have an obligation to follow the U.S. Constitution, which is the supreme law of the land.

Finally, my OP actually praised Justice Scalia for his observation about religion and public office. I guess some of the commenters missed that point.

[anon]

The reference by Observer, I believe, was to the assisted suicide case, where the views of the administration about the applicability of the CSA were overruled by state officials, and upheld by the SCOTUS.

My comment did not refer to the reports of state officials who have objected. I referred to the views of state officials, which I quickly noted as irrelevant. I noted these views are irrelevant because I stated, and you apparently agree, that state officials must follow the law. (The real issues will arise elsewhere, as noted above.)

If you see everything in terms of "Red" and "Blue" you reveal a bias and the divisive posture that is polluting our discourse at a national level. It matters not a whit which news reports you have paid attention to. If you think that the views of state officials in "Red" states are uniform and uniformly different from the views of state officials in "Blue" states, then I would conclude that you are allowing your bias to affect your common sense.

Finally, as stated above, I didn't miss your point. You, right off the start, stated your political bias ("Red" is bad, unlawful) and then went on to write a sort of incoherent post that basically sent the message that Scalia is a Catholic, that Scalia's jurisprudence is (or should be) therefore defined by his religion, but that he doesn't follow his religion. All of which, of course, is completely irrelevant.

As many astute essays have proved, Scalia has repeatedly held in cases in ways that are not consistent with Catholicism. Yet, biased commenters continue to harp on his religion.

Please, address the ethics of a justice who conducted a same sex marriage and then sat on a case adjudicating the validity of that marriage in other states that had amended their constitutions to reject it. ANd, while you're at it, be sure to include a discourse on the religion of that justice and how that justice's religion informed, or didn't inform, that judgment.

[Former Editor]

anon,

I assume you are referring to RBG and Kagan's presiding over same-sex weddings? Unless I've missed one, all of those weddings were either performed in Washington, DC or in Maryland. Same sex marriage has been legal in both of those states as a result of local legislative action since 2010 and 2013, respectively.

In other words, those weddings would have been valid no matter how the constitutional questions in the same sex marriage SCOTUS decisions came out. Consequently, I'm having some trouble seeing what was so improper about conducting them.

[anon]

It doesn't matter if the celebration was locally approved.

The issue is "s[itting] on a case adjudicating the validity of that marriage in other states that had amended their constitutions to reject it."

[Former Editor]

I'm still not seeing the problem. How does performing a wedding in a jurisdiction that permits same sex marriage express any view as to whether that marriage must be recognized by other jurisdictions?

[anon]

I engage in conduct that a state refuses to recognize as legitimate.

Then, I order the state to recognize my conduct as legitimate.

I'm still not seeing your problem seeing the problem.

[anon]

And while we are looking at a SCOTUS justice voting to change and overrule the law in any state that refuses to recognize and validate what the judge personally did in a voluntarily conducted civil ceremony, let's be sure also to scrutinize the religious roots and present beliefs or lack of religious beliefs of any such judge, and ask whether the judge has adhered or not adhered with the precepts of any member of that religion whom we deem, as experts in matters of others' religious beliefs, authoritative on matters of personal religious beliefs.

[Former Editor]

There isn't a problem because the marriages that Kagan and RBG performed were not part of the cases before the Court; only legal issues that indirectly touch those marriages in some hypothetical future situation were. That a justice has engaged in conduct that is perfectly legal in its jurisdiction does not create a conflict of interest prohibiting him or her from ruling about whether laws prohibiting that conduct in some other jurisdiction are unconstitutional. By the same logic you are using every member of the Griswold court who had ever used a condom would have had to recuse.

[Steve L.]

Likewise, Scalia's legal gun ownership in Virginia would not require recusal in Heller and MacDonald. Justices who sent their kids to integrated schools were not disqualified in Brown v. Board.

Do we need to go on?

[anon]

Ahhh

I sort of knew this would go to personal conduct: smoking weed, I thought.

There is a difference between acting in a personal capacity, and acting as a judge, officiating a wedding.

[anon]

It is so rich when politics is the governing principle.

Scalia haters clamored for him to recuse himself in a case involving Dick Cheney because Scalia participated in a hunting trip with Cheney. Scalia refused. Then, Scalia recused himself in the Pledge of Allegiance case, likely because he gave a speech stating his view that those objecting to the Pledge had meritless claims (the real reason he recused himself must have been because of his Catholicism)!

Was Scalia correct in both instances? In one, but not the other? If so, which? How did his religion influence him? What was the position of the Pope on these matters? Did Scalia disobey the Pope, a Cardinal, perhaps a Bishop? What is Catholic doctrine on hunting trips, Dick Cheney and the Pledge of Allegiance? Should Scalia have known this before he disregarded established rules of the Catholic church?

We must go further, right? We can measure to what extent Scalia is either: a.) a religious fanatic, whose decisions are guided by his religion, or b.) a religious hypocrite, who claims to belong to a religion, but rules in cases in ways that clearly don’t comport with the dictates of that religion.

Fair minded persons need to know: fanatic or hypocrite?

How did Scalia’s conduct compare to: a.) officiating , b.) in a civil proceeding, c.) knowing to a certainty the proceeding would be considered invalid and illegal in many states other than the state of celebration – and knowing with virtual certainty that that failure to recognize the justice’s officiating as legal in those other states would come before the justice in a case?

Do you consider immaterial the appearance created by a justice who ruled in a case that must have found that either: a.) the justice officiated at a ceremony legitimately banned by thirty-one U.S. state constitutional amendments, or b.) the judge officiated at a ceremony that should be perfectly legal in every state and the thirty one state constitutions to the contrary must be deemed invalid?

Completely immaterial? No ex parte communications? No lending of the justice’s prestige to the validity of such marriage proceedings in general before the case came before her? No partisanship involved? No appearance of a lack of objectivity based on prior, official conduct?

C'mon. Nothing to it. Let's get back to Scalia's religion.

There's a real issue!