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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Saturday, December 5, 2015

Marriage Equality: Justice Scalia vs Judge Posner

Since 2009, this law blog has tracked marriage equality and its attendant same-sex civil rights movement. This movement swept the nation, culminating in a pair of SCOTUS opinions -Obergefell [2015] and Windsor [2013].

As he has done in several past dissents, Justice Scalia puts forth a vehement opposition to same-sex marriage in Obergefell, and since writing his dissent in that case, has spoken formally, openly, and often. His message: there is no textual or historical basis for the majority's ruling that laws and government policies must be gender neutral.

Justice Scalia believes that the thread of same-sex marriage decisions is the most glaring example to date of the SCOTUS doing "whatever it wants". He seems most troubled by the fact that the marital equality decisions are contrary to the religious beliefs of a significant portion of the citizenry. Such decisions are for the elected legislators -not for an un-elected committee of lawyers wearing robes- according to Scalia.

In his recent public comments on the landmark SCOTUS decision, Scalia has radicalized himself, even among conservative legal scholars. Speaking before law students at Georgetown, he equated, perhaps sarcastically, child molesters to homosexuals. To be precise, Scalia said there is no principled basis on which to distinguish the two "minority" groups. The implication is that, like "homosexuals", child molesters will be the next group to seek protected status under the constitution.

Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago, one of the most cited jurists of the 20th Century, -and like Justice Scalia, a legal conservative- takes Scalia to task for his comments in a well-read NYT editorial. In the piece, Posner seems most concerned about Scalia's declaration that post-Obergefell, American democracy is dead.

Judge Posner is also troubled by Scalia's assertion that 9 un-elected lawyers, cloaked in robes, should not be the brain-trust behind such important matters as marital equality or any civil rights struggle for that matter. Judge Posner also uses Scalia's own logic against him, pointing out that Scalia does not hesitate to vote for invalidating state laws or legislation that contravene the First Amendment, or some of his pet federalism-related clauses of the U.S. Constitution.

Finally, Judge Posner takes Scalia's public commentary to its logical conclusion: the abandonment of proper judical review. Posner has a good point here; one of the primary roles of the SCOTUS, at least since the 1803 Marbury v Madison decision, is to conduct rigorous judicial review of the myriad pieces of legislation that the many many legislatures and legislators dream-up.

Over time, legislators of every stripe imaginable are elected into the legislatures of our country; some of whom have been bit with a special kind of fever. We here at the Law Blogger sleep better at night knowing that their work-product must withstand judicial review relative to the U.S. Constitution.

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