What’s less obvious is whether Justice Scalia will vent his political and personal prejudices. Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage arguments? Will he even try? His recent track record is not encouraging.
What intrigues me is whether Scalia’s words in the Lawrence dissent will come back to haunt him. In Lawrence, the Court invalidated sodomy laws. Basically, the thinking was that what consenting adults did in privacy was not going to frighten the horses, so we should just let it be. Scalia’s dissent was scathing and he saw the decision as having dire future consequences. One particular part of the dissent may haunt him tomorrow:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
Taken at face value he has admitted that the fight about same-sex marriage is already over. If states cannot pass laws against sodomy, they can’t ban same-sex marriage. What was he thinking ?
A couple of years ago, I came up with a theory as to how he could have come to utter those words which he may have to eat tomorrow. It goes back to the high school, we both attended – many, many years apart – Xavier High School in New York City.
The faculty of Xavier High School consisted of Jesuit priests, scholastics (who were on the way to becoming Jesuit priests), lay teachers, who were like regular guys and the Military Science faculty. Xavier, at that time, required all students to be in Junior ROTC. The Military Science faculty consisted of an active duty Army officer and a couple of active duty senior NCO’s and a few more retired NCO’s. With the exception of Father Hareiss, who had been drafted into the Wehrmacht while a young Jesuit and regaled us with stories of the street fighting in Munich “Venn, he vas a young boy in Chermany”, the most colorful faculty members were the retired sergeants.
Among them was Sergeant Daley, from whom we learned in the basement rifle range, that a certain unmentionable type of hair is actually a unit of measure. Sergeant Daley told us many things that we would need to know as rookie Army officers (which almost none of us became). One of those things was the unfortunate chronic shortage of blank ammunition to create realistic training exercises.
The other was an anecdote about the dangers of blank ammunition. In lieu of a bullet a blank round had a small wad of material that is dangerous at very close range. He illustrated this point with a story about someone firing a blank with his rifle pointing down in a crowded room. At that range the wadding material could penetrate the top and bottom of a combat boot and the intervening biological material.
As I said, Justice Scalia is quite a bit older than I. When he attended Xavier, Sergeant Daley was still on active duty and unavailable to warn young high school lads about shooting themselves in the foot.
You can follow me on twitter @peterreillycpa.
Originally published on Forbes.com Mar 25th, 2013