Monday, October 04, 2004

In Defense of Justice Scalia

Yup, you read that right. But no, I do not, of course, defend Scalia's uberconservative jurisprudence. I do, however, want to defend Mr. Justice Scalia against a recent spate of terrible press.

Justice Scalia made some comments at Harvard some days ago which have set off a firestorm of attention, topping the news on legal blogs across the country and engendering op-eds in several major papers. This one in the Trentonian is representative. The Trentonian reports that Scalia said the following in an address in Cambridge: "I even take the position that sexual orgies eliminate social tensions and ought to be encouraged...."

The op-ed then proceeds to use the terms "orgy," "orgies," or "group sex" no less than ten additional times, concluding that "Supreme Court Justice Antonin Scalia thinks we should be having group sex."

Ridiculous. Scalia, a practicing Catholic, thinks no such thing. And the news media knows it. The comment was both taken completely out of context and misquoted by the Trentonian, among others.

The context of the comments reveal that Scalia was actually making, in a witty way, a complex point of legal theory. In his speech at Harvard, Scalia criticized a European court decision which ruled unconstitutional a law banning group gay sex. However, Scalia's intellectual opposition to the decision was not (as he put it) because of "the social evil" of the ruling. Rather, he objected to the court's method's -- its "discovering" of untextual rights and its making of moral decisions which, in his opinion, should be made (not by judges) but by the people, through democratic processes. In an attempt at humor, Scalia then quipped that his opposition to the decision would be the same even assuming "for the sake of argument...that sexual orgies eliminate social tensions and ought to be encouraged."

Again, this was simply a different (if ill-advised) way of emphasizing that his opposition to the European court rested on process rather than moral grounds.

Yet, the media seized upon the comments and has, for several days now, reported breathlessly the Justice's support of group sex. Absurd.

What relevance does this have for the social gospel?

Well, for every trumped-up sensationalist article the news media prints about Scalia's orgy comments, there is less public attention available for issues that really matter: the economy, Iraq, the presidential election. People are dying and starving, but our media is reporting on orgy comments that weren't really orgy comments. Another distraction.

Perhaps I am falling into distraction too. But I thought it was worth a post to warn: don't be deceived. This trumped-up sensationalism isn't an isolated incident.

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