Antonin Scalia as the measure of how far we have to go

Back in the 1980s, when my law degree was the primary credential under which I tried to serve ecclesial and civil society, I followed US Supreme Court cases with care. I read histories of the Court and biographies of the justices. I could competently discuss lines of cases in certain areas of constitutional law and had a working knowledge of what was coming before the Court and how the circuit courts below it were divided. Since earning my canon law degrees, however, and moving predominately into canonistics, the common law colors under which I sallied forth into American high court jurisprudence have slowly faded. Some friends and colleagues are, God bless them, experts on Supreme Court matters and from them I can learn who’s who and what’s what with the Supremes. But these days, I attend only to canonical and wider ecclesiastical issues that may surface at One First and Maryland.

Unfortunately, in the aftermath of Obergefell, several such issues loom. Here I point to just one.

Justice Antonin Scalia (who has always caught my attention—I favorably reviewed his Federal Courts and the Law some fifteen years ago) is a lifelong, intellectually sophisticated, unabashedly Catholic, Catholic. Though often relegated to dissent, no one exposes the nakedness of the Supreme Court’s (especially, Justice Anthony Kennedy’s) legislative and literary pretentiousness better than does Antonin Scalia. He has blasted, for example, Obergefell as resting on “the mystical aphorisms of the fortune cookie” cobbled out of “mummeries and straining-to-be-memorable passages.” It’s rollicking good stuff, the kind of trenchant writing that 3Ls would memorize and throw at each other in law school lounges back when law school lounges were always hazy with cigarette smoke.

But here’s the problem: Scalia’s dissenting opinion, while correctly arguing that Congress, and not the Courts, is the law-making branch of government in America, opens with this line: “The law can recognize as marriage whatever sexual attachments and living arrangements it wishes … It is not of special importance to me what the law says about marriage.”

Good grief! I say it again, good grief!

If someone of Scalia’s life in the faith, off-the-charts intelligence, and central responsibility for the role of law in the world’s leading democracy, really thinks that “law can recognize as marriage whatever sexual attachments and living arrangements it wishes”, then, what is there for the rest of us to say but, All is lost? Yes, Scalia disagrees with Obergefell, but only on process grounds, not on the merits of the issue—had the legislatures of all 50 states and the federal government chosen to “recognize as marriage whatever sexual attachments and living arrangements” they wished, Scalia, by his own words (and these, reiterated!) would have agreed.

Lost on Scalia the high judge and legal philosopher, it seems, is the whole of the natural law tradition, a tradition that holds law to be, among other things, an ordinance of reason—and not simply a matter of the will, legislative or otherwise. Right reason should lead one to conclude that the human institution we call “marriage” is only one thing, the permanent union of a man and woman. Scalia expressly rejects this conclusion. But also lost on Scalia the active and educated Catholic, it seems, is the Church’s unbroken teaching that marriage can only exist between a man and woman, and that to hold otherwise is to be in plain contradiction of infallible Church teaching (Canon 750 § 2). Indeed, if, as seems all but sure, Church teaching that ‘marriage is the permanent union of a man and a woman’ is not just a truth knowable by natural reason but is revealed by God then Scalia’s assertion that we can call “marriage” any sexual combination of people (or things?) we wish (provided only that we do so through a legislature) would be objectively heretical (Canon 750 § 1)! No matter how one reads him, then, whether as a judge charged to reason or as a Catholic charged to believe, Scalia has made an astoundingly wrong and harmful assertion in a hugely public way.

Which highlights, I am afraid, a deeper problem yet.

Scalia’s generation of Catholics was supposed to be that which still recognized that a Catholic’s faith must animate a Catholic’s whole life, that, to paraphrase Canon 209 (which has no fine print exempting Catholics who happen to be Supreme Court justices), Catholics are supposed to act like Catholics 24/7. Now, because a Catholic may never, under any circumstances, say that marriage is not the permanent union of a man and woman (let alone may a Catholic say that marriage can be whatever a civil government feels like making it!) we must ask, If an Antonin Scalia doesn’t get it, Lord, who does?

The bishops in America, who are today trying to repair a catechetical crisis largely not of their making, should see Scalia’s dissent in Obergefell not as a springboard from which to organize opposition to “same-sex marriage” but as a measure of just how much repair work needs to be done if Catholics in America are ever to learn again what it means to think with the Church.