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Stanley Fish: ‘Scalia Told Us So’

You may not like his conclusion, but it's hard to disagree with Scalia's logic on same-sex marriage and polygamy

I miss Stanley Fish’s column on the NYT’s website. In a new piece in HuffPo, the law professor and postmodernist provocateur points out the inconvenient truth that Justice Scalia was right about where gay rights jurisprudence was taking us. Excerpts:

Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the “lawlessness” of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: “Is Polygamy Next?” (Are we sliding down a slippery slope?)

So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, “lacking even a thin veneer of law” and full instead of “the mystical aphorisms of the fortune cookie”? (2) Or is Scalia’s dissent, as his critics charge, “unhinged,” “bitchy,” “juvenile” and “hysterical” (all words that have been applied to it)? And (3), is it inevitable that the majority’s arguments will lead to the legalization of plural marriage? I would answer “yes” to (1) and (3),” no” to (2).


Scalia’s complaint against the Obergefell majority — although he doesn’t put it this way — is that once again a moral perspective has been allowed to displace the process of patient legal analysis. This time the morality is different; not the stern old testament morality that ruled in Bowers and was overruled in Lawrence, but the morality of love, identity, intimacy, spirituality, aspiration, dignity, self-expression and respect — all words Kennedy uses and words that bear the mark of the vaguely new age sensibility Scalia derides when he refers to the “opinion’s showy profundities” that are, in fact, “profoundly incoherent.” What exactly, he asks, is the legal import of intimacy and spirituality, and “who ever thought” that they were “freedoms” of a kind that merited constitutional protection? How can this claim be traced by a legal analysis to clauses in the Constitution? How can the court justify the creation of “‘liberties’ that the Constitution and its Amendments neglect to mention?”

There may be answers to these questions, but, Scalia insists, the court doesn’t really answer them. It instead proclaims the virtues of the moral perspective it “really likes” while heaping scorn on the moral perspective it “really dislikes.”

Once the court’s preferred morality is in place, it is hard to see what stands in the way of deriving from it a case for the protected constitutional status of polygamy, also a form of intimacy that could be said to express the dignity, identity and self-expression of those who engage in it. The legal judgment against polygamy was established in an opinion that cited as its chief support the older morality the court has now rejected. In Reynolds v. United States (1879), a Mormon’s claim that he had a right to engage in plural marriage because his religion commanded it was disallowed. Polygamy, the court declared, “has always been odious among the northern and western nations of Europe… and was almost exclusively a feature of the life of Asiatic and of African people.” In short, we white Protestants just don’t do that kind of thing. “It is impossible to believe,” the court continued, that the “constitutional guaranty” of the free exercise clause “was intended to prohibit legislation” criminalizing plural marriage.


Now it would seem to be impossible to believe anything else. With the prohibition against interracial marriage struck down, the prohibition against gay sex struck down and now the prohibition against gay marriage struck down, the prohibition against plural marriage cannot be far behind. To be sure, there are some problems that would have to be thought through or re-calibrated, such as community property laws, inheritance laws, custody laws, probate laws, tax laws and the like. But that’s just a matter of tinkering with the details. The main principle — the protection of “our most profound aspirations” (Kennedy) — demands its extension to polygamy.

Read all of it. Fish doesn’t take a position one way or another on the advisability of polygamy, but only points out that Scalia got it right in his prediction of where the language and principles in the pro-gay jurisprudence (starting with Lawrence in 2003) is taking things.

Jonathan Rauch, the prominent gay rights advocate, says this is nonsense. There is an extensive literature on the social harm done by polygamy — something that does not exist regarding same-sex couples. And that means that it would be easy for opponents of legalizing polygamy to demonstrate in court that there is a rational basis for outlawing the practice.

Rauch wrote his bit responding to Freddie de Boer’s Politico essay arguing that now gay marriage is here, there’s no reason to keep polygamy illegal. Here is de Boer responding to Rauch’s criticism (as well as social conservative arguments against polygamy). Excerpts:

Second: this is not how rights work. Typical of the kind of jury-rigged arguments that progressives tend to employ against polygamy, this implies a profound, drastic deviation from conventional political morality. Are people really rights consequentialists in this way? If I proved that segregated schools produced better test schools, would Jon Rauch say we should resegregate them? If social science demonstrated that interracial marriages had poor demographic outcomes, would Rauch favor recriminalizing those marriages? I certainly hope not. But that’s an absolutely necessary logical consequence of his argument. I cannot stress this enough: if you say that social science compels us to deny polygamous marriage, you have to also say that you’d oppose gay, interracial, or any other kind of marriage if that empirical research existed. I find that a fundamentally bankrupt vision of political morality. And there are examples everywhere. There is research that suggests a great number of socially undesirable outcomes associated with religious belief. So do Rauch or other people who quote the social science on polygamy think that we should start shuttering the synagogues, temples, and churches? Of course not. They don’t actually believe in rights consequentialism. They just endorse that viewpoint here because of their fear of polygamy.

On the point that polygamy would be too complicated to implement in our society:

Logistics are never sufficient reason to deny human rights. Again: this is not how rights work. The Americans with Disabilities Act has cost our country hundreds of millions of dollars and thousands of hours of effort and energy. And yet it’s one of the best pieces of legislation in our history, precisely because rights exist regardless of their short-term convenience. Again: is this logic applied in any other case? If someone proved that desegregation was really expensive, would that be sufficient reason to establish it? If gay marriage was logistically difficult? No. No, none of the people making this claim would oppose gay marriage or desegregation or any other rights-based claim on logistical grounds, because again, these complaints are not the product of a coherent legal worldview but of short-term, ad hoc, “any port in a storm” argumentation.

To be sure, de Boer is a true left-wing radical, one who believes that the state has no right to tell anybody who they can and cannot marry, and how many people can and cannot exist within a marital bond. Obviously I think he is profoundly wrong about that, but that is beside the point. What is useful about de Boer’s posts, and Stanley Fish’s — and, if you get right to it, Antonin Scalia’s — is how they reveal the logical thinness of the anti-polygamy position. It seems to me that it all goes back to Justice Anthony Kennedy’s “sweet mystery of life” declaration in the majority Planned Parenthood vs. Casey opinion:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

If that were really true, then we would have anarchy. Nobody actually believes that it’s true. But a majority of the Supreme Court believes it is true when it comes to matters of sexual liberty, including abortion and same-sex marriage. Scalia’s point all along has been that the Court is imposing its own moral views over an older moral code, all the while pretending that it’s engaging in dispassionate legal reasoning. But this is what liberal elites do all the time. In fact, de Boer is often very good at discerning this from the left. More on which in a subsequent post.



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