Does Posner resort to a 'cheap debater's trick' in skewering Scalia's 'majoritarian theocracy'?
According to Judge Richard Posner, Justice Antonin Scalia’s establishment clause jurisprudence is so deferential to religion that he would probably uphold the constitutionality of a sign on the White House lawn stating, “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”
Scalia has never written an opinion striking down a state or federal law under the establishment clause, Posner writes at Dorf on Law. And Scalia’s statements on religious opposition to gay marriage suggest his political ideal “verges on majoritarian theocracy,” Posner says in a New York Times op-ed. Posner is a judge on the Chicago-based 7th U.S. Circuit Court of Appeals. Both articles are co-written by Georgia State University law professor Eric Segall.
Posner and Segall’s New York Times article, published on Dec. 2, spurred criticism. Among the critics is Ed Whelan, who accuses Posner of unfairly presenting Scalia’s positions and resorting to “the cheap debater’s trick of setting up and knocking down a bunch of straw men.” His critique in the National Review is here.
In the op-ed, Posner and Segall quote Scalia’s dissent in Obergefell v. Hodges, the U.S. Supreme Court decision finding a constitutional right to gay marriage. Scalia wrote that the decision subordinates the people to a committee of nine unelected lawyers, and such a system of government “does not deserve to be called a democracy.”
According to the Posner and Segall op-ed, “The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy.” Yet Scalia has voted to strike down statutes as violations of the First Amendment, constitutional federalism provisions, and the 14th Amendment, Posner and Segall point out.
Posner and Segall assert that the Obergefell decision “seems to obsess” Scalia, who recently said same-sex marriage is contrary to the religious beliefs of many Americans.
“The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical,” Posner and Segall write. “It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.”
Posner and Segall also criticize Scalia for recent comments on the duty to obey judicial rulings when public officials think those decisions aren’t grounded in an original understanding of the Constitution. Scalia reportedly said officials who are not actual parties to Supreme Court cases have no obligation to obey such rulings, and pointed to the same claim by Abraham Lincoln after the Dred Scott decision.
“That’s technically true,” Posner and Segall write, “but few Americans will agree with Justice Scalia that Obergefell, which conferred rights on millions of Americans, is comparable to Dred Scott, which denied rights to millions by ruling that slaves were not citizens and could not sue in federal courts.”
Whelan responds that Scalia’s Obergefell dissent doesn’t contest the court’s authority “to enforce rights that actually are in the Constitution.” Instead, Scalia is criticizing the court’s “naked judicial claim” to unconstrained power that is untethered to the Constitution. Whelan also says Posner and Segall wrongly conclude that Scalia’s statement about overriding the religious beliefs of Americans suggests he doesn’t believe the Constitution can override those beliefs. “What nonsense,” Whelan says.
Posner and Segall respond at Dorf on Law that Scalia appears willing to invalidate laws under the establishment clause only if they coerce people to engage in religion or punish people for doing so. That means Scalia would only strike down laws that already violate the First Amendment’s free speech clause or the 14th Amendment. “So, yes, we think it is fair to say that Justice Scalia believes in ‘majoritarian theocracy,’ ” Posner and Segall write.
Whelan responds in another National Review article. He says Posner and Segall “are dramatically downsizing” their initial claim that Scalia apparently believes the Constitution can’t override the religious beliefs of many Americans. Yet they still “badly botch” Scalia’s position, Whelan says.
Hat tip to How Appealing.
Updated at 12:57 p.m. to correct a reference to Justice Antonin Scalia.
