THE ANIMUS OF ANTONIN SCALIA

http://www.newyorker.com/online/blogs/comment/2012/12/the-moral-feelings-of-antonin-scalia.html



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A few months from now, when the Supreme Court hears arguments in the two same-sex marriage cases it accepted for review last Friday, many observers will likely be in Hosie’s position—listening with some amazement to Scalia as he berates lawyers, fascinated by his animosity, wondering about the point where a cruel note removes any enjoyment one might find in intellectual theatrics. There haven’t exactly been signs that Scalia is mellowing. His dissent, this year, in an Arizona immigration-law case, was as politicized and angry as ever—and gay-rights cases do not exactly bring out his soft side. For the health-care case, we had broccoli arguments; for same-sex marriage, we will likely be coming back to bestiality.

At the same time, those listening to the arguments will hear the story of Edith Windsor, the plaintiff in one of the two cases—the one that is the best chance to overturn the Defense of Marriage Act, which withholds federal recognition of same-sex marriages that states sanction. Windsor met her wife, Thea Spyer, in 1965; she danced with her so long that, at the end of the evening, there was a hole in her stockings, as Spyer told the Times in the couple’s wedding announcement. A few years later, Spyer was diagnosed with multiple sclerosis, and Windsor eventually quit her job (as an early computer programmer at IBM) to take care of her full time. By the time the two were able to marry, in 2007, Spyer was confined to a wheelchair. When she died, Windsor was subjected to more than six hundred thousand dollars in taxes on the apartment and country house they shared—taxes that a heterosexual widow would have been spared. That injury is what gave her standing to bring the case; her commitment to her wife and her steadfastness should be humbling even for Scalia. (Admittedly, that may be optimistic.)

But there are also a couple of points in Scalia’s dissents that are worth thinking about, if only as objects of contemplation. The first is his firm belief that earlier gay-rights cases set the legal framework for same-sex marriage, and that his opponents were blind in denying that. He may have been right—if thoroughly wrong to oppose gay-rights for that reason. One recalls the scenes in “Lincoln,” in which Thaddeus Stevens restrains himself from saying what he knows and hopes will be true—that an end to slavery may lead to a broader, truer social equality. Scalia clings to hate—what he calls animus—because he’s got nothing else; what he is missing, though, is that an increasing number of Americans have found that when legal strictures and open discrimination are stripped away they are left not with the reprehensible, but with neighbors, friends, and family members whom they love, and see loving each other. Little wonder, then, that two-thirds of those under thirty support same-sex marriage.


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