4 May '15     home | previous

Justice Scalia and Ancient Rome

On April 28, during an argument at the US Supreme Court concerning same-sex marriage, Justice Antonin Scalia drew from history in trying to make a point. I enjoy picking on Scalia although he is a fine man – civilized and educated. But in my opinion he makes some bad decisions.

Concerning same-sex marriage, Scalia found signicance in ancient Greek and Roman cultures being tolerant of homosexual relations while excluding homosexual couples from marriage. The issue before the Court, described by civil rights attorney Mary Bonauto, is that denying gay couples the right to marriage relegates them to second-class status and puts a "stain of unworthiness" on them. As a defender of traditional marriage, Scalia was questioning Bonauto's claim.

Marriage in ancient Greece and Rome was about conferring legitimacy to children (one of the reasons, by the way, for concern with men about virginity). It was about property and procreation, not about the emotional, tax or civic rights and benefits that Bonauto raised. Marriage in ancient Greece and Rome didn't offer homosexual couples anything they wanted. Scalia was messing with historical analogy, ripping issues out of their historical context, which often creates confusion. My favorite example of a bad historical analogy is the prime minister of Russia in 1917 associating revolution with the gung-ho military spirit that arose during the French Revolution. He believed it applied to the recent revolution that overthrew Russia's tzar. The prime minister made the mistake of ordering another military offensive, which led to the fall of his government and the rise to power of the Bolsheviks.

Scalia's analogy isn't as consequential. It's just the kind of irrelevant chatter that makes his friend, Justice Ginsberg, want to take a nap.

Scalia's belief in adhering strictly to the text of the Constitution (what he calls textualism) is a sort of historical analogy. It's too much of a making two different times in history exactly identical. His opponents on the bench at the Supreme Court value the Constitution but are flexible enough to believe that the Fourteenth Amendment to the Constitution – about citizenship rights and equal protection – applies to the question of homosexually inclined couples being allowed to marry. Scalia and some fellow conservatives don't approve of that flexibility. They are inclined toward absolutes.

In ancient Rome, by the way, Emperor Augustus made homosexuality a punishable offense. Augustus saw having children as moral, and he initiated legislation that he hoped would encourage marriage. People who remained single or married without children after they were twenty were to be penalized through taxation – something we need not fear will be advocated today.

Copyright © 2016 by Frank E. Smitha. All rights reserved.