Wednesday, December 12, 2012
The Supreme Court’s announcement Friday that it will take up gay marriage is more than a chance for the justices to recognize the emerging national consensus in support of gay rights.
It is a chance for them to overrule the medieval views of Antonin Scalia.
Actually, I don't think Justice Scalia is medieval at all. He's more of a positivist who thinks the Constitution is law in a pretty conventional way. You need some different sort of view, that the meaning of the Constitution evolves over time, or that the Court is not bound, strictly speaking, by the meaning of the Constitution, to find a Constitutional right for gay marriage, or so it seems to me. I think it's only recently, in the last 20 or 30 years, that the idea that there existed a right to same-sex marriage was even seriously entertained. So FDR would have scoffed at the idea, for example, as would JFK's appointments to the high court, for example. So Scalia's views on the Constitution are not medieval, just moderately originalist.
As to his moral views, I'm guessing Scalia's views could more accurately be described as counter-Reformation, not medieval. Periodizing history is uncertain, but most of us would not put the counter-Reformation in the Middle Ages. Just sayin'. --ts