For the Love of Dissent

By Mark David Blum, Esq.

Having listened to all the caterwauling and ballyhoo fluffed up after the Supreme Court’s decision in Windsor, the DOMA case, I finally had to join the mass orgy and get me some of that warm fuzzy spreading throughout the land. Work had prevented me from jumping into the arms of every major Decision issued in the past 2 weeks and I am now slowly catching up.

Of course, having been a small but loud foot soldier in the Battle for Marriage Equality (I got my cred) forever, the Windsor case was first up on my list. Many have been the years I did battle with “the Movement” about whether the solution to equality was via the Supremes or on a State by State basis. I said Feds and “they” said the States. California’s Prop 8 pretty much resolved going down that road; after all, if the most liberal State in the nation cannot get it’s house in order, how will the rest of us?

Yet this day I write not of DOMA or Gay rights but rather the beautiful eloquence and fist in the face dissent of Justice Antonin Scalia. There is much legalese with which I could clutter this essay. None of it, however, would explain what we already know. Part of Justice Scalia’s Dissent is to this sad writer’s eyes, a masterpiece of eloquence and control of language and idea.

Over the course of his tenure, I have developed this love/hate adoration and loathing of Justice Scalia. To me, his is an overly brilliant mind trapped in human body. His grasp of language and how tool it to construct his points is many times not just strong legal desk pounding, but is at times near literature. His style and character shine as his personality drives his writing into throwing so many body blows, his opponent never catches a breath. It is one of the few items remaining on my bucket list to be able to sit down over dinner and drinks with Mr. Scalia and get into the meat and potatoes of the constitution, the law, and what it is all about. It would be my lawyer’s wetdream. Scalia has a mind that fascinates me and infuriates me but is strong and has a rocket science fast wit.

Let me be clear too that I verily believe Justice Scalia is also a fraud. He constantly offends the very high minded principles upon which he rests his arguments. This is what makes reading him so infuriating. I love that man’s work but when I see him being blatantly hypocritical to his basic paradigm in nearly every opinion he writes, I want to smack him upside the head with the latest edition of Cranch.

In Windsor, Justice Scalia did something brilliant. It is something I bet even the legal world has not yet noticed since all eyes are currently focused upon which genitals are marrying which. To explain his brilliance, I have to first give a mini crash course in how sausage is made. Justice Scalia goes right at the Court’s hunger, so that too is where I shall start.

In a federal court, the constitution only allows the court to hear or be involved in a case if there is a real case or controversy. It cannot be a possible or hypothetical situation. The courts will abstain from involving themselves in issues that are not yet issues. They do not give advisory opinions; unlike New York Courts where parties can go and inquire as to the law’s interpretation of a situation before it might arise. Whether there exists a real case or controversy is the first place a federal court looks before it allows a case to go forward.

With that as the backdrop, Windsor sues the Federal Government in federal district court and wins a Decision finding that DOMA was unconstitutional. Windsor wins. The President of the United States is tasked by Constitution to enforce the law of the land. He is also under fiat to support, defend, and protect the Constitution of the United States. In the minds of President Obama and that of his Attorney General Holder, DOMA was unconstitutional and therefore, the Executive Branch refused to appeal Windsor’s win. So, the government who had defended DOMA because it was sued loses its’ case and Windsor wins. NEITHER SIDE wants to appeal because both agree DOMA is unconstititonal.

Bring in John Boehner and House Republicans. DOMA was a law passed by Congress and shamefully signed into law by President Clinton that commanded the federal government to disrespect and abuse twenty percent of the population because some God told them to. When DOMA was declared unconstitutional and both sides of the case agreed with that ruling and nobody was going to appeal, the United States Republican Congress got its own lawyers, filed an appeal seeking to overturn the lower court, and ultimately dragged everybody before the Supreme Court; spending a bazillion dollars in taxpayer and citizen money to get there.

The Republicans argued that the President was obligated to enforce the law even if he disagreed with it. With President Obama refusing to act, Congress acted in his place; or at least felt it had standing to do so. (“Standing” is another sausage word meaning a person who has an actual legal interest in an actual case such that they have a right to be heard as part of the case).

Hiring bigshot lawyers, Speaker Boehner and Congressional Republicans went charging into the federal appeals process carrying the flag of hatred and God. Long story short; they lost.

Where I think the fun part begins is how Justice Scalia called out the Republicans for being idiots and also chastised the current Court for being overly hot to reach the Marriage Equality issue. He general view, well stated at his Point I A – up front and center, is in his own words, a question of, “yet the Plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree the Court below got it right; and they agreed that the court below that got it right as well. What, then, are we doing here?” What he questioned was that since both sides of the case are happy with the outcome, why is the issue on the court’s calendar? There is no case, there is no live controversy.

Scalia continues beautifully explaining that the Supreme Court is not there to jump into a debate between the Legislative Branch and the Executive until an actual case or controversy arose. The Court is not a referee. At times, it may be called upon to be the Decider. But without a real dispute, where does the Court have any reason to hear, let alone consider a case? Article III is clear in its language; … ‘cases and controversies’.

In a footnote on page 6, the Justice then points out the ultimate irony in the case. He scolds the majority for “scolding the President” because the President refused to uphold the law. On that too I would have to agree as it is the fundamental duties and obligation of the President to NOT enforce an unconstitutional law. (42 USC 1983, Fed. Tort Claims Act). If the President must come calling for the Court’s opinion before making a determination to not enforce a law, it places the role of the Supreme Court in way too Supreme a position on government. It is not the People’s House. Criticizing the President for doing so and using that as a jurisdictional basis to justify the existence of a ‘case or controversy’ via the Republican House lawyers, the majority gave standing to the Court give advisory opinions on disputes between the other two CO-equal branches of government.

The irony is that the Republicans came looking for a fight seeking what they thought was a slam dunk. After all, an act of Congress was refused to be enforced by the Executive. Republicans stormed the Bastille knowing the Court was looking for the opportunity to give the President what he wanted, and in the end, did. Here too sausage making and Republican blunder was exposed as it is the general rule in federal jurisprudence to avoid deciding constitutional questions, if possible.

The gyrations of the majority opinion on standing notwithstanding, I opine on this narrow issue, Point IA, the crazy old Justice is correct and the Court erred. at p. 35.

Indeed DOMA is thankfully dead. The majority in doing so and how they did it, has created widespread chaos. Fortunately the end result when the dust clears is that equal means equal and less religious and government intrusion into personal privacy.

***Legal Geek Alert:
Above I repeatedly criticize the good Justice Scalia for his hairbrained backwater reverse hypocritical arguments. At the same time, I have such an admiration for his mind and wit. His lust for First Amendment defense makes us blood brothers.

He always argues as the fundamental bedrock of his constitutional perspective is the idea of “originalism”. (It has been called many things before; though ‘originalism’ seems to be currently in vogue). Justice Scalia argues and pounds his gavel saying ORIGINAL INTENT! ORIGINAL INTENT! What did the Founders say? What did they mean? That and only that is what counts.

On that principle, he and I stand shoulder to shoulder.

Where he always offends me and again in Windsor, at Part II B of his dissent, Justice Scalia contradicts himself by making the statement, “if the right is not specified in the constitution, then there is no such right unless society grants it.”

Justice Scalia says that because the Constitution does not say I can put cream in my coffee, I as a citizen, cannot claim a right of privacy sufficient to prevent the government from telling me I cannot put cream in my coffee. He argues that the only right I have to put cream in my coffee is if society via government so grants me that right.

That rationale of his is what bursts the blood vessels in my head. He is totally absolutely and fundamentally wrong IF he argues orginalism. Our founders built this nation on the fundamental principle that ALL rights under God belong to each and every one of us as a matter of our birth. It is a natural law principle oozing from every word written by Jefferson to Madison and everyone in between. Only those rights which we surrender to society, by virtue of our vote, do we give up.

When Justice Scalia in the opening paragraph of his Dissent in Windsor Part B argues about “society” should have the final say in what is and is not marriage, he violates his own paradigm. Society does not get to say that some of us are treated less equal than others. That is a fundamental right written in the dang document. If government decides to give every married couple an apple, it cannot decide that some married couples don’t get apples because our morality does not like how they live. Perhaps a private institution and certainly a church can choose to whom it will and not give apples. Society, government does not get to make that distinction. ‘Marriage’ as a religious institution is unique to every adherent and follower. No government should be able to define for any church what that church considers to be a properly sealed marriage under the eyes of God or flying spaghetti monsters. At the same time, if civil society says that if two people live together in a combined household, raise a family, and live a life committed to each other, then we are going to give them an apple, society cannot say that well, we don’t want to give apples to people who are not like us. That is one of two fundamental originalist constitutional fundamental intents breached by the Justice in his opinon.

The other is more basic. I have an absolute natural right to put cream in my coffee. Doing so has nothing to do with anything in society. I would ask Justice Scalia how society could take away that right if I don’t surrender it? If you stand with the Founders, then the right to cream in my coffee is as fundamental as my right to speech. It is there, in the Ninth and Tenth Amendments to the constitution; Amendments I believe the good Justice once referred to as a “joke”. (What originalist would argue that the constitution only means what it says and then summarily dismiss twenty percent of the Bill of Rights?).

Respectfully submitted:

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