Wednesday, October 18, 2006

Scalia Gives ACLU an Earful

October 16, 2006

by Pete Winn, associate editor of

The Court's top conservative confronts the American Civil Liberties Union face to face — not that his insights changed any minds.

Delegates to the American Civil Liberties Union's (ACLU) annual conference in Washington, D.C., heard from a conservative icon Sunday night — Supreme Court Justice Antonin Scalia. Speaking to an audience of 1,500 civil libertarians during an hour-long debate with ACLU President Nadine Strossen, Scalia spoke out about abortion, same-sex marriage and religious freedom.

The conservative justice told the left - leaning lawyers group there is no basis in the U.S. Constitution for abortion or homosexual rights — and that controversial issues should be settled through the democratic process, not through the courts.

"What democracy means," he said, "is that, on controversial issues — even stuff like homosexual rights, abortion, whatever — we debate with each other and persuade each other and vote on it."

Scalia said America decides such questions by majority rule - either through legislatures or constitutional amendments in the states. "(The) Bill of Rights was adopted by the majority," he said, "which is why it is proper in a democracy to have a Bill of Rights, because the majority adopted it." Scalia said our forefathers never included abortion or homosexual activism in the Bill of Rights. "Nobody ever thought that they had been included in the rights contained in the Bill of Rights," he said, "which is why abortion and homosexual sodomy were criminal for 200 years."

Scalia said it isn't the job of a judge — or the court — to decide if abortion or homosexual activism is a good idea or a bad idea. "It is my job to say whether the Bill of Rights have taken it out of the realm of democratic debate," the justice said. "Just because you feel strongly about it, it isn't necessarily in the Bill of Rights."

Taking a firm stance on religious freedom, Scalia said it was clear that, throughout our history, no one thought the Constitution's First Amendment prevented the government from fostering religious practice, or being favorable towards religion. "Our history is full of (appeals to religion)," Scalia told the lawyers. "The same Congress that proposed the First Amendment, directed George Washington to issue a proclamation of thanksgiving to God, 'for all His favors to the Republic.' "

In response to Strossen's defense of the ACLU's vision of the Constitution as a living — or evolving — document, Scalia said the question is whether we can live with an evolving Constitution. "Once you say it evolves and it doesn't depend on what the people thought they were doing when they adopted it, somebody's going to have to decide how it evolves," he said. "Why in the world would you want nine people from a very uncharacteristic class of society — to wit, lawyers — to decide how the Constitution evolves?

"It would mean whatever they think it ought to mean."

Did Scalia change any minds? Probably not, given the audience.
Today, the ACLU's Gay and Lesbian Rights Project said it will continue to press for same - sex marriage. While the lawyers did say they will file only a few challenges if voters in nine states enshrine the definition of marriage in their constitutions next month as the union of one man and one woman — that doesn't mean the group is changing its stance on gay marriage.

The goal now is to educate the nation on "the equality issue" — to try to create an atmosphere in which legal challenges in favor of same-sex marriage may eventually work. The plan is to train gay activists to take arguments in favor of same-sex marriage to every forum they can — from formal debates to presentations at the local Rotary or Kiwanis clubs. "People's attitudes change significantly for the better when they know a gay person, and . . . know what it's like to be gay," said the ACLU's Paul Cotes. "That's what we need to be doing, is having those conversations."

Bruce Hausknecht, judicial analyst for Focus on the Family Action, said the announcement only goes to show the ACLU isn't about to give up pushing a liberal agenda. "They see the Constitution as something that they think the court should use to impose 'new and enlightened' values upon the American public," he said. Hausknecht added that it was good to see Scalia articulate for everyone why conservatives oppose the idea that the courts should be utilized to create "rights" that ought to be dealt with through the democratic process.