Legal Commentary

When I last chatted with you all, I remarked upon Justice Scalia's remarks upon the dedication of our wonderful new building here at Marquette. I once again bring news of Nino.

During a question and answer period at a Constitution Day event at Hastings College of Law, Justice Scalia announced the view that the Constitution does not forbid sex discrimination. His argument, I take it, is that the original public understanding of the equal protection guarantee was that is was limited to race and that no one imagined that it was intended to constitutionalize a particular view of gender roles.

The day before I had been asked to guest lecture in a colleagues' course on Law and Social Change. The idea was apparently to bring in a real life conservative to talk about judicial restraint. I spent a fair amount of time on Justice Scalia's textualism with which these latest remarks are in, I think it is fair to say, tension. If the equal protection guarantee was to be limited to race, why not say so? Writing at Balkanization, David Gans certainly seems to thinks so.

The answer, I suppose, is that an equal protection clause that might apply to other things could apply to anything. Courts have traditionally tried to limit its scope through the devices of multi-tiered scrutiny and through the identification of suspect classes that are thought to be situated in ways that justify more intensive examination of distinctions that are claimed to burden them. Few  seem to believe that the extension of some form of heightened scrutiny to distinctions drawn on the basis of gender have proven unworkable or resulted in significant frustration of the popular will, so what's the problem?

My guess is that he Scalia's narrow concern is not so much about sex discrimination as it is about sexual orientation discrimination. In particular, I suspect that he is troubled by the use of changed gender roles to argue that the state can attribute no significance to gender. In Perry v. Schwarzenegger, for example, the district court used legal developments such as the abolition of coverture to argue that, because we don't have legally mandated gender roles, gender no longer has much to do with marriage.

My own sense in reading Perry was that the court had assumed the triumph of equality feminism over difference feminism. It is one thing to say that women are free to participate equally in public life. But it is yet another to say that there are not certain differences between men and women that might justify structuring certain institutions in a particular way thought to accommodate - or, perhaps more accurately - reconcile those differences. If men and women experience sexual desire in different ways and, therefore, have, in anthropological terms, differing "mating strategies" or if they experience parenthood in differing ways, then perhaps the state will wish to structure marriage in a way that accomodates or reconciles those differences.

These views cannot, in my view, be dismissed as "neanderthal" (many people experience them as significant factors in their lives) or as calling for a return of the hausfrau relegated to kirche, kuche und kinder. (Phrasing it in that way would also risk the invocation of Godwin's Law.)

Of course, they may not get you to a justification for the prohibition of same sex marriage. One might argue that, if same sex couples, due to inculturation or otherwise, want to buy into an institution shaped by the recognition of gender differences, perhaps they should be permitted to so. We are now at that curious point in the same sex marriage in which the views of conservatives and, for lack of a better word, radicals begin to proceed from the same set of presuppositions. Conservatives worry that same sex marriage will change the cultural and legal norms of marriage. Radicals hope that it will.

Scalia's broader concern is his oft-stated distrust of the views of "cultural elites." In his view, permitting courts to discern contemporary standards is a bit like the old line, about the nineteenth century modernist  protestant seeking the authentic Jesus. He tends to find Him at the bottom of a well and is pleased to note the resemblance.

I suppose this is no insight. It is no mystery as to how Scalia would view the district court's decision in Perry. But I don't know that it means, as Gans and some of the commenters at Balkinization seem to think, that Scalia's constitutional method is incoherent or hypocritical. To be sure, it leaves room for manuever. If one wishes to say that the original public understanding of the equal protection clause was that it had to do with race while abandoning the idea of the original expected application (i.e., that it wouldn't require desegregation of schools), one needs to justify the level of generality at which this "original public understanding" is pegged. One also needs to justify, as Gans point out, the view that the racial equality mandated by the clause can be reduced to color blindedness and does not extend to ameliorative measures designed to repair the harms to blacks brought about by slavery.

But to ask those questions, it seems to me, calls for extending the conversation and not for ending it by assuming that there can be no answers.