by Elizabeth Scalia


02 JULY 13
It was easy to miss but on June 30 the New York Post carried brief editorial remarks by Michael Goodwin that read:

Count me among those cheering the Supreme Court decisions on gay marriage. At least I was cheering until I read the part of Justice Anthony Kennedy’s opinion where he claims the law he struck down was motivated by hate . . .[that] the law inflicts an “injury and indignity” on gay Americans and reflected a “bare congressional desire to harm a politically unpopular group.” By extension of that logic, those who still oppose same-sex marriage are bigots.

Why yes, that’s precisely why Justice Antonin Scalia, in a dissent that is being called “intemperate,” “blistering,” “flaming,” and “dripping with contempt and sarcasm,” wrote:

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. [It is to] “dis-parage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homo-sexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Scalia’s passionate opinions flow from his pen like lava, seemingly indiscriminate, but nevertheless finding every curve and crevice of what lies before them. Often referred to as the “most conservative” of the Supreme Court jurists, Scalia spends part of his Windsor dissent arguing in defense of what used to be considered a most “liberal” notion: that human beings have a right to express their point of view without fear of reprisal; a right to dissent from conventional wisdom; a right, even, to be wrong. It is a sentiment that free-thinkers (of even the recent past) would often express by quoting Evelyn Beatrice Hall’s summary of Voltaire’s thinking: “I disapprove of what you say, but I will defend to the death your right to say it.”

Kennedy’s opinion makes it clear that the days of defending the freedom of others to think and speak outside of the ever-narrowing corridors of what is permissible are numbered; the line of delineation he sketches out is stark, bare, and singular: there will be one (correct) thought or there will be Bad People.

What an illiberal notion!

In his book, Making Money, Terry Pratchett writes “People don’t like change. But make the change fast enough and you go from one type of normal to another.” This has successfully occurred in the issue of gay marriage. Thank goodness our president came to his senses just last year, in mid-reelection campaign; thank goodness his presumed successor, Mrs. Clinton, made it abundantly clear—a scant twelve weeks ago—that she supports gay marriage, saying LGBT Americans “are full and equal citizens and deserve the rights of citizenship.”

Whether the Bad People who argue for tolerance of their own viewpoints will remain “full and equal citizens, etc” remains to be seen. A recent Department of Justice memo on Gay Pride Month chillingly suggested otherwise when it instructed employees to be vocal and visible in their support because, “silence will be interpreted as disapproval,” even if one does not especially disapprove. The threat of payback for perceived disapproval did not need spelling out.

In 2009 writer Ada Calhoun “came out” as a Christian to her fellow travelers but did so while hoisting a rainbow flag meant to spare her any social retribution. With a breathlessness that nearly jumped off the page, she insisted she was a Christian, but—as Archie Bunker might have phrased it—“one of the good ones”: “I could reassure my atheist friends that the Episcopal Church is a force for equality and social justice. It ordained its first gay bishop, Gene Robinson, in 2003.”

We will see more of that defensive sort of talk among Christians, as the politics of the Bad Person takes hold, and people rush to prove that “Think Different” is all right for ad campaigns but not for social inclusion.

Antonin Scalia, meanwhile, is now an official Bad Person, but a full reading of his opinion gives evidence that he is not nefarious, but merely nuanced. As Emily Bazelon writes at Slate, “. . . he directs most of his rage at the five-justice majority, not at proponents of gay marriage. . . . He’s surprisingly OK with ballot initiatives and laws that have approved gay marriage. Scalia doesn’t share the morals of gay marriage supporters, but he is willing to live and let live.”

That’s a very catholic, and Catholic, way of looking at things; it used to be the very definition of liberality and tolerance.

Elizabeth Scalia is the author of Strange Gods: Unmasking the Idols of Everyday Life and the managing editor of the Catholic Portal at Patheos.com, where she blogs as The Anchoress. Her previous “On the Square” articles can be found here. [Elizabeth Scalia is not related to Antonin Scalia].

7.2.2013 | 12:53am

Paul says:

It is ironic that the liberals, who otherwise claim such a tolerance for freedom of speeach show such contempt for views differing than their own. This is especially trueon social and moral issues. Thanks for this well thought out piece.
7.2.2013 | 5:11am
Douglas Johnson says:
In the run up to the Civil War, Lincoln made the following speech at Cooper Union, in February 1860. Lincoln noted that all the efforts by the free states to appease the slave-holding states had failed to assuage their concerns. Consider that Justice Department memo as you read the following quote from Lincoln’s Cooper Union speech, and ask yourself–What will satisfy the LGBT activists?:

The question recurs, what will satisfy then? Simply this: We must not only let them alone, but we must somehow convince them that we do let them alone. This, we know by experience, is no easy task. We have been so trying to convince them from the very beginning of [the Republican Party], but with no success. In all our platforms and speeches we have constantly protested our purpose to let them alone; but this has had no tendency to convince them. Alike unavailing to convince them, is the fact that they have never detected a man of us in any attempt to disturb them. These natural and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must he done thoroughly-done in acts as well as in words. Silence will not he tolerated–we must place ourselves avowedly with them. Senator Douglas’ new sedition law must he enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must he disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.
7.2.2013 | 6:58am
Lagos1 says:
Actually, I don’t think “live and let live” when it comes to moral issues is a particularly Catholic one.

Pope Pius XII affirmed in Ci riesce, “That which does not correspond to truth or to the norm of morality objectively has no right to exist, to be spread, or to be activated.

This expressed standard Catholic thinking as also found in Pope Pius IX’s Syllabus of Errors as one example.

This does not mean that Catholics can never tolerate certain things in civil society about which they disapprove – but this is not the same as “live and let live” which is, in fact, decidely un- Catholic.
7.2.2013 | 7:16am
Howard says:
“We will see more of that defensive sort of talk among Christians….”

We have been seeing that for some time now. Practically every condemnation of homosexual behavior from Catholic sources now comes with a reference to CCC 2358 to show that Catholics are among the “good ones”. Now there’s nothing wrong with CCC 2358, only what is said about homosexuality in it is by no means unique. Everyone has temptations to a variety of sins, and no one should be subject to unjust discrimination. However, when it’s a sin that both the speaker and the public agree is *really* wrong, we rarely hear anything about hating the sin and loving the sinner. I don’t remember the US bishops talking about our need to love the coyotes who exploit and often murder Mexicans trying to enter this country illegally. The difference is so consistent it’s hard not to conclude that many (most?) of them think that there’s nothing inherently wrong with homosexuality, it’s just something they’re supposed to condemn because of the customs of their Church — much as they are supposed to abstain from meat on Fridays, but would not seek to impose that on any non-Catholics.
7.2.2013 | 7:27am
Reader John says:
The “Department of Justice memo” isn’t quite as chilling as you make it sound. It came from a gay rights group within the Department, as tips for effective managers, not officially from above. And the “silence will be interpreted as disapproval” observation, in context, probably was true, just as it would be interpreted as disapproval if someone “came out” as a Christian and the listener turned away silently.
7.2.2013 | 7:34am
Andy says:
My concern about Justice Scalia is not wether he is evil or not. I know very few truly evil people. My concern is consistency. He says in his DOMA decision that the courts do not have the right to strike down a law fashioned by congress, yet in the VRA he quite carefully strikes down a law fashioned by congress. I find that Justice Scalia does this frequently. Does that make him evil – no. But for a person who claims to be an originalist he seems to move into places that are not part of the historic record or apparent intent of the constitution.
7.2.2013 | 9:18am
Church of the East member says:
I am in sympathy with Scalia on the matter of “gay rights,” and share the scorn justifiably being heaped on hypocritically intolerant liberals. I predict, though, that heavy-handed attempts at social control such as the Justice Department memo mandating open support for “Gay Pride” month represent examples of the “gay rights” faction overplaying their hand. Eventually, there will be a violent backlash against the “gay rights” faction on the part of the vast, silently aggrieved opposition. Whether the ultimate outcome of that backlash will lead to an improvement of the situation in the long run is extremely doubtful, however.
7.2.2013 | 9:29am
Church of the East member says:
That said, Scalia has not done any favors to his “Bad Person” image with his blatantly partisan assent to shutting down the democratic process in “Bush versus Gore” in 2000.

An even more sinister action warranting the “Bad Person” image was Scalia’s participation with Dick Cheney in a duck-hunting expedition in early 2001, followed in short order by Scalia’s assent to a decision allowing the proceedings and written findings of the Cheney-led National Energy Task Force, which met in the spring of 2001, from being made public. The stakes in the case were enormous, as the full public revelations of the Task Force proceedings would probably have revealed Bush Administration complicity in war crimes.

When subsequently challenged by the press on his refusal to recuse himself when the need to do so was obvious in view of Cheney’s opportunity to communicate privately with him about the case, Scalia’s response was an arrogant “quack, quack.” Having not repented of his lack of moral and intellectual integrity in these two decisions, Scalia’s “Bad Person” reputation is entirely warranted.
7.2.2013 | 9:40am
Captain America says:
The real problem here is that it is a volatile mixture that is created when Reputable Journalists and Reputable Journalistic Sources join hands with political activists.

The fresh power goads activists to demand, demand, demand even more.

My opinion of the average homosexual keeps sinking; I can’t help but consider homosexuals to be sexual addicts that are deeply harming themselves and wishing to do even more damage.
7.2.2013 | 9:55am
Thomas Murray says:

While it is true that the memo came out from an internal DoJ group, the fact that it was emailed to all managers does give the appearance of official sanction. (It has been my experience with the government and the military that such broadcast emails, if not officially sanctioned, are soon followed up by a disclaimer or retraction.) Also, the Department of Justice Pride (DOJ Pride), founded in 1994, “serves as the recognized organization for all Lesbian, Gay, Bisexual and Transgendered (LGBT) employees working in the Department of Justice’s offices, boards and divisions.” Official recognition implies some measure of authority in governmental circles. And as far as 23 “tips”, the all caps, red “DON”T” and green “DO” statements convey a stronger message, as do DoJ intranet links to policy papers. Nowhere on the document is there a disclaimer that this is not official policy. The natural conclusion of any manager receiving this would be that this did represent official policy.

Add to this the Administration’s weighing in on LGBT matters with Executive Order 11748 and follow-on DoJ directives, one would naturally come to the conclusion that this was official policy.
7.2.2013 | 9:59am
John Carpenter says:
In the brave new world being created by the advocates of homosexual “marriage”, to oppose full equality of homosexuality is to be, ipso facto, a “bad person”, a “bigot”. Oppression will inevitably result.
7.2.2013 | 10:48am
A Reader says:
With reference to the comment from “Reader John” at 7:37 a.m.:

“… just as it would be interpreted as disapproval if someone [identified] him or herself as a Christian and the listener turned away silently.”

This is correct. Turning away silently or swiftly changing the subject while registering discomfort after receiving a confidence is in most cases an expression of disapproval. Devout, active religious believers know this because they have experienced this particular version of disapproval. I can think of many other points of view that do indeed evoke disapproval.

The difference is that until now, in the United States of America, holding a point of view or adhering to a different set of propositions about important questions has been protected as a right to which all citizens are entitled.

It is certainly true that homosexual behavior was until now regulated by secular authorities because it, like heterosexual promiscuity, was believed to spread virulent disease. Perhaps medical advances have made this belief obsolete. Perhaps not. In the case of heterosexual promiscuity it is most definitely not obsolete. It is quite clear that millions of cases of sexually transmitted disease are now considered an acceptable price to pay for sexual “freedom”. Those who object; those who believe that respect for one another requires that the truth be clearly “handed on” from one generation to another stand threatened with a federal requirement not to remain silent on this subject.

How can this possibly be squared with our former status as free and equal citizens?
7.2.2013 | 11:47am
Franklin says:
Without offering an opinion of whether calling those opposed to same-sex marriage bigots goes too far in a country where we have the right to free speech and where are committed to diversity and tolerance, certainly no one would argue (or would they?) that it is *always* unacceptable to charge bigotry or even to call others “bad people. Certainly the Catholic Church itself does not shrink from condemning racism or anti-Semitism. Before the issue of slavery had been decided once and for all in the United States, were the abolitionists morally bound to say to their pro-slavery opponents, “Well, of course *we* believe slavery is wrong, but far be it from us to deny you the right to have your own opinion, so let’s just agree to disagree.”

Wouldn’t that be something approaching moral relativism? Is it always unacceptable to accuse someone of being just plain wrong? Is it always unacceptable to accuse others of prejudice? Being tolerant, it seems to me, does not require putting up with anything and everything.

A great many Catholics, including the USCCB, are accusing the Obama administration of infringing on religious liberties because of the “contraceptive mandate.” Are they obliged to say, “Well, Mr. President and Secretary Sebelius, we disagree with your policies, but we are sure your motives are good, and we are sure that *you* don’t perceive *yourselves* to be infringing on religious liberty. We merely see things from different perspectives.”
7.2.2013 | 11:57am
Fr. J says:
“One of the good ones.” That phrase has an interesting history.
7.2.2013 | 12:09pm
JR says:
Quick question: Is a person who, to this day, believes that interracial marriage is wrong a bigot?
One must have the freedom to express views but that freedom does not necessarily grant immunity from public scorn (whether well or ill deserved) especially when such an expression threatens the freedom and/or well being of other equal citizens.
7.2.2013 | 12:16pm
Br. Timothy says:
Lagos1’s remark at 6:58 is EXACTLY right. Amen to that.

Proponents of traditional marriage are being remarkably modest if all we ask for is that our position be regarded as ‘one legitimate option.’ If we believe our position to be true, then either we persist in decrying the illegitimacy of the opposition’s position or we succumb to relativism. We mustn’t lose sight of the distinction between freedom and license.
7.2.2013 | 12:43pm
Nancy D. says:
The fact is, The Supreme Court ruling did not follow proper substantive or procedural due process Law in the same manner it failed to follow proper substantive or procedural Law in Roe v Wade, Dred Scott v Sanford, and any other Supreme Court Ruling that denies the truth about the inherent essence of the human person. Every son or daughter of a human person, being a human person, regardless of ancestry, desire, or consent, has the inherent unalienable Right to be treated with Dignity and Respect in private as well as in public. If one desires or one consents to not recognize their unalienable Right to be treated with Dignity and Respect, one cannot do so because our unalienable Rights have been endowed to every human person from God, and are thus unalienable.

Regardless of ancestry, desire, or consent, men and women have been designed by our Creator in such a way that it is physically impossible to engage in same-sex sexual acts without demeaning the inherent personal and relational Dignity of those persons engaging in same-sex sexual acts.
7.2.2013 | 12:57pm
A Reader says:
Regarding comment from “Franklin”:

I would answer “Yes”. We are as free people entitled to free speech. This may entail declaring another person wrong about one idea or another. But this must always, if we are still to be free, involve toleration (“with principle”) of ideas and beliefs that are not criminal even if they cause us loss or harm. Catholics understand that we must vigorously argue our case against the mandate. If we lose the argument, we will suffer the penalties. This is why one often hears of respect for those who have “courage of their convictions”. There may be heavy costs. (I do not agree that calling anyone a “bad person” is ever right. We must always hope that some good remains; redemption is always possible.)

With regard to Justice Kennedy’s edict from on high – that the respected scholars and lawyers who diligently and respectfully set forth the reasons for support of natural mother-father-children understanding of marriage, had no reasons other than animus and intent to do harm, to injure others: This defies understanding. One wonders if he bothered to read the briefs in support of marriage. Is it possible that he decided on his verdict before the case was argued?
7.2.2013 | 1:47pm
Gil says:
Justice Kennedy speaks to a new world order of legal sexual identity assignment, clearly understood by those who possess a superior human wisdom of what constitutes good and evil.

Of course, after sexual identities are firmly established under the rubric of constitutional rights, in an inevitable future a host of books will have to be banned, probably destroyed, and at the top of that list no doubt will be Georges Bernanos’ trilogy of evil: “A Crime”, “An Evil Dream”, and “Monsieur Quine”, along with Hans Urs von Balthasar’s tribute to this great Catholic novelist, “Georges Bernanos, An Ecclesial Existence”, wherein he praises the three novels (p 150):

“The eloquent symbol or the dream character of the whole trilogy is homosexuality, a theme with an oblique, shadowy presence in all three novels: homosexuality as the perversion of love into self-love or lack of love, which amounts to the same thing, for a love-partner of the same sex is but a duplication and a mirror of the self. For Bernanos, sexual inversion is the efficacious sign or the ‘sacrament’ of sin and therefore the best means for making it visible. Moreover, the spiritual reality behind the sign is nothing other than unreality, nothingness itself: to attempt to displace the one and only reality instituted by God and usurp its place. Thus, the dream stands here, no longer for the projection of an idea by the soul, but rather for the evacuation of all meaning, the dilution of being, a vacuum, a distorting mirror, and the dissolution not only of a person’s substance but, more comprehensively, even of the form in which this substance can express itself. There exists a (philosophical) idealism of godlessness that is the adequate expression for the loss of being through sin.”
7.2.2013 | 1:48pm
yan says:
Whether bad person or not [and my input would be, most decidedly, not], Justice Scalia has shown himself to be a master of the soundbite. His pithy and trenchant usage of ‘hostis humani generis’ has taken the media world by storm. And they say Latin is a dead language!
7.2.2013 | 2:21pm
readering says:
Remember, what the DOMA provision that was struck down said was that even if a state recognizes a gay couple’s union as a valid marriage under its own laws, the federal government was going to deny that family all the federal benefits that come with marital status. The provision did nothing to affect the legal status of gay marriages in the states that recognize them; it just discriminated against some “married” couples in myriad economic ways. Thus, the provision did nothing to advance or strengthen “traditional marriages”; it just took money out of the hands of gay families. That is strong stuff and strong evidence of animus, even before examining the legislative report on the bill that was dramatically quoted by Justice Kagan to former Solicitor General Clement at the oral argument. Justice Scalia has made it abundantly clear that he views homosexual sex as an abomination. I readily tolerate that viewpoint, although I think it retrograde. (I have little doubt that Ronald Reagan, the man who elevated Scalia, engaged in just as much non-procreative sex in his life as, say, Barney Frank, including with teenage starlets as a middle aged man.) But there should be nothing surprising with my taking Scalia to task for going further and using the gift from Reagan to try to put into effect his view that he as a citizen, legislator or executive should be allowed to join others in taking concrete actions that harm gay people.
7.2.2013 | 3:11pm
Brian Doyle says:
Q: Isn’t the nut of this entire discussion the fact that legislating sexual behavior is now out of fashion? You can hear Scalia’s rage at the cultural shift when he carefully says ‘sodomy,’ a verboten word now. In the long view the shift in attitude about sex, after the arrival of the pill, leads right to all this debate about rights. If we do not care about sexual behavior between adults, then we cannot defend legislating against it, as we did for centuries. Scalia is furious that the culture has quietly changed so fast, I suspect, more than he is furious at his fellow judges.
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I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas