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Communique 10-13-2020 "If I Were Asking The Questions This Is What I'd Like To Know"

By Phil Drucker

If I Were Asking The Questions This Is What I'd Like to Know

On Monday October 12, 2020 Amy Coney Barret formally began her nomination process for Associate Justice of the Supreme Court. From her opening statement released the day before and on of all days National Coming Out Day, when taken in its totality, it would appear apparent Ms. Coney-Barrett’s mission in life is to become the second stupidest smart person to sit on the SCOTUS, the first being her mentor, Antonin Scalia. Her onstage evasive and disingenuous at best manner have done nothing to disprove my originalist analysis.


Judging from the text, subtext, pretexts and thinly veiled dog whistles hidden within her statement alone, her agenda will be one aimed primarily at reviving the myths attached to Scalia’s only used when convenient commitment to not legislating from an activist judiciary branch, beginning with her unspoken intent to overturn Obergefell v. Hodges thereby repudiating equal rights for the LGBTQ community under Due Process and the 14th Amendment as they pertain to same sex marriages.

After a rousing introduction highlighting her wonderful same sex marriage with its on the down low “everyone should try it” message, ACB recounts her rise through the legal and court establishments until arriving at what sounds like an epiphany, known to us mere mortals as the activist, Reagan appointed terror from behind the bench, Saint Scalia.

The basic problem with the Scalia approach is that although he paid lip service to America as a government of laws, not men, his opinions regarding LGBTQ rights recorded mostly in dissent, it is clear some men deserved less protection of their rights under the Constitution than say a gaggle of Caucasian landowners in the late 18th Century who it just so happens created a new country based in large part upon freedom from oppression and the right to equal application and justice for all, nobody above, and nobody below, under the laws of the land. ACB then lands a sub-sonic TKO:


“Justice Scalia taught me more than just law. He was devoted to his family, resolute in his beliefs, and fearless of criticism.”


Regarding his definition of “family” and applicability to the LGBTQ community, what were Scalia’s beliefs? His dissents are at a minimum informative and indeed, taken in the aggregate, quite illuminating


In Lawrence v. Texas, the case that gave constitutional privacy protections sex between consenting members of the same sex, Scalia, fearless of criticism in his dissent, and curiously in the name of history and managed to compare homosexuality to bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.


After a bit of rambling about how discrimination against homosexuals is part of our past culture, as if this is what made America great, he posits it is therefore perfectly acceptable that we continue to do so, unconcerned or uninhibited by the addition of 200+ years of history. The best part however is where Scalia really shows his stripes:


"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means."


As we all know, having to say it aloud means the exact opposite. I’m still waiting for the “some of my best friends are…” a line now best reserved for ACB to include in one of her sure to be in one of her fair, well-reasoned decisions she is so eagerly now promising to provide.


Also of note and again in dissent, in Romer v. Evans, a case involving state laws and equal rights for the LGBTQ community in the workplace, Scalia scolds the majority opinion in favor of gay rights and workplace equality for their “…verbally disparaging as bigotry adherence to traditional attitudes.” Scalia then manages to compare homosexuality to bigamy:


"Has the Court concluded that the perceived social harm of polygamy is a 'legitimate concern of government,' and the perceived social harm of homosexuality is not?"


All the while against a backdrop of chiding the Court for its mistaking a Kulturkampf for a fit of spite and while I can credit him for using Kulturkampf, sadly, I cannot approve of the man or the message behind it.


This list goes on and on, but there you have it, Antonin Scalia Greatest Hits Vol. I. Are these the family traditions and values ACB is ready to employ as part of her guiding lights towards the fair and just rulings she is promising to provide?

Oh, ACB will play the “if it isn’t there” card, as the words “gay” or “Same-sex marriage” do not appear in the 2,543 words that make up our Constitution, but we know better and what she won’t tell you is the word “liberty” as in life, liberty and the pursuit of happiness, the foundational building blocks of Constitutional protection, includes the right to be free from government sponsored hatred for those who are perceived to be different. Animus due to race, gender, nation of origin or, as here, sexual orientation should not be tolerated, much less promoted from the judiciary at any level, much less the highest court in the land.

With Justices Thomas and Alito signaling their willingness for a new war on LGBTQ rights including the right to same sex marriage, is there any real doubt as to the what ACBs addition to the Court will mean? The only relevant question in my mind is who’s next on their hit list for Scalia’s Greatest Hits Vol. II (the Coney-Barrett years).

Might I take this chance to remind Ms. Coney-Barrett, no matter the amount of intellectual chicanery and legal gymnastics or self-serving moral outrage used as justification, in the final analysis stupid is as stupid does. Scalia was a stupid man. Remember, Ruth Bader Ginsburg was smart and you are where you are today in large part because of her kindness and compassion from the Bench including her respect for Equal Protection for all under the 14th Amendment. Make a difference, a positive one. Don’t be like Antonin, be like Ruth.


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