Justice Antonin Scalia predictably voted against same-sex marriage, along with three other justices on the Supreme Court. The dissenting judges all had their own reasons, and of course, couldn’t agree on a dissent, so there are four dissents. Scalia’s dissent took an interesting turn, though. He believes that the reason the high court ruled in favor of marriage equality is because there isn’t enough diversity there.
To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
One has to wonder what his solution to this particular problem is. While there are no specific requirements that a Supreme Court justice be a lawyer, with a law degree, they must have extensive knowledge and understanding of the Constitution, and of case law. Today, that usually means going through law school and working your way up through the court system until a seat on the bench opens up, and you merit consideration from a sitting president.
Also, Supreme Court justices aren’t just nominated by the president; they must be confirmed by the Senate. So both the executive and legislative branches have a say in the makeup of the Court, and those are the representatives of the people. Scalia must know this. He’s been a Supreme Court justice long enough. Or perhaps that’s the problem. He’s sat on the bench of the high court for so long that he’s forgotten.
Generally, a lack of diversity means making decisions that benefit only the perennial majority. In this case, that would be straight people. A lack of diversity doesn’t often result in a decision that benefits a minority, particularly an oppressed minority, because there’s no empathy when there’s no diversity.
None of the current justices are Evangelical Christians, and they all went to Harvard or Yale, so Scalia is partly right. In some ways, there isn’t much diversity on the bench. The problem with having Evangelical Christians on the bench, though, is that they would let their religion influence their decisions. We’re not a Christian nation. We shouldn’t have lawmakers who let their religion influence what they do, and we certainly can’t have them on the bench of the courts that are supposed to interpret the Constitution.
The Post also correctly points out that, even if we did have a more diverse bench that was more representative of the U.S. population, including evangelicals, the decision may not have been any different. A majority of Americans support marriage equality now, compared to even ten years ago, and the percentage is very close to that of the Supreme Court.
If the Court is supposed to represent America a little better than it does, evangelical Christians who are feeling marginalized would still feel marginalized. Their views are not representative of the majority, and it’s ridiculous to assume that if we just had the right representation in place, the evangelicals would have gotten their way.
The Post mentions that Scalia’s main problem was not diversity, but rather, the idea that the Court was legislating from the bench. Again, he’s a sitting judge, so he would know that’s not what they did here. They didn’t write a law, and they didn’t write an edict telling Congress, or the states, to write a law, “or else.” They can’t do that. All they did was interpret bans on same-sex marriage through the lens of the Constitution. That’s not legislating from the bench.
It’s sick and sad that we have someone on the bench who sees it this way. Scalia needs to retire already, and make room for someone who can actually do the job.