On Nino and Me

I first encountered the writing of United States Supreme Court Justice Antonin “Nino” Scalia in a college constitutional law class. I can’t remember the case or whether his opinion was in the majority or (more likely) the minority, but, in his opinion, I remember encountering this fierce roiling and tumbling of words and concepts that set the government major in me afire. His writing was poetry in a world of prose, and, love it or hate it, you instantly recognized it as singular, illuminating, and powerful. It was the brilliant, beautiful, awful wreck from which one cannot turn away.

I was headed to law school before I became well acquainted with Justice Scalia, but his writing didn’t hurt. Even before I read his jurisprudence on cases that personally touched my life, I knew we were on opposite sides of the political and legal worlds, but, in many respects, Justice Scalia and his pugnacious parries at his intellectual foils held out for me the promise of an advocacy that was thrilling and challenging. To the extent there is such a thing, Scalia was the bad boy on the bench.

As I made my way through law school and spent more time reading legal opinions, understanding competing legal interpretation theories, and learning the scope (and limits) of the law, the shine on Scalia’s opinions faded. This dulling coincided with my growth into a more self-aware gay man and a concomitant understanding of my status as a second-class citizen, legally speaking. I could not marry the person I loved or even expect any sort of legal benefit or protections. I could not serve in the military without lying about who I was as a man. I could be fired for no other reason than whom I loved, not my ability to do the job. I could be denied public accommodations, I could be denied the opportunity to see a loved one in a hospital, I could be imprisoned in many states, the list goes on and on and sadly on. Hell, I couldn’t even donate blood!

Armed (or burdened, if you will) with that understanding, I found myself reading Justice Scalia’s pronouncements that laws aimed at providing me rights equal to those of my friends and fellow Americans were part of a larger and nefarious “homosexual agenda.” More gallingly, he compared me to drug addicts, prostitutes, and those who engage in incest and bestiality. He not-so-subtly mocked the idea that I could love someone to a degree worthy of marriage, and he hid behind the alleged enormity of the change to the definition of marriage, stating that such monumental shifts should come at the hands of the voters, not the courts. It was, and still is, a thunderously naive statement coming from someone who never had his rights, freedoms, or liberties questioned, denied, or put up for a vote.

The salutes to Justice Scalia’s brilliance are rolling in, and, indeed, he was brilliant. It is right and proper that many kind words should be said about him; after all, we don’t speak ill of the dead. And I’ve been surprised to read a gay lawyer/journalist or two forgive Scalia his prejudices and, instead, focus on the fierceness of his intellectual discipline, the soaring and slumming nature of his writing, and his importance to the history of the Court. I’m sure such writers will be praised for their magnanimity, for their ability to look past this obvious blindspot in Justice Scalia’s jurisprudence. I will not be one of them.

My evolution on Scalia was not one of a fallen hero. It was not the dawning recognition that an idol was not perfect. Rather, I came to understand that, for all his bluster, for all his brilliance, for all the big words and fancy phrases and legal argle-bargle, his approach to the law lacked heart. Plain human compassion. He lacked the capacity to look beyond himself, to understand that the Constitution and its promise of liberty and equality was reality for some, but remains an unfulfilled promise to others in our country. And, for those people, it is not enough to say that they are subject to the tyranny of the majority. It is not enough to say that they must beg and plead with their fellow citizens to recognize their fundamental rights. The promise of our Constitution must be greater than that. I’m no constitutional scholar, but I’m pretty sure our founding fathers would want it that way.

I’ll miss his outsized personality, and he was always entertaining. And I’ll always give him his due as a brilliant jurist with a definite point of view. He forgot more about the law than I’ll ever know. But I won’t miss a voice on the Court that attempted to deny to me basic rights he enjoyed without a second thought. There are sins that are simply unforgivable, and I’m quite certain that Nino would love a statement of such moral certitude.

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