How are we to understand the recent request from the Australian Christian Lobby (ACL) to the various state and federal anti-discrimination agencies to have these respective laws suspended for the duration of the prospective plebiscite on marriage? I was perplexed until I recalled two things, the first returned to light reading the commentary on the death of the late Supreme Court justice, Antonin Scalia. In his dissent in the Windsor case, which ruled that the Defence of Marriage Act (1996) was unconstitutional, Scalia wrote:
In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed [judgment] is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
The second items pertains to a current case, being investigated by the Tasmania’s Anti-Discrimination Commissioner, that involves a complaint that the Catholic Church’s teaching on marriage, as reflected in a booklet produced by the Australian Catholic Bishops conference called Don’t Mess With Marriage, was “offensive, intimidating, insulting or ridiculing of Ms Delaney and the class of same-sex attracted people”.
The combination of these two items, the claim that only irrational animus againsts homsexuals could ground the belief that marriage is an institution that unites a man and a woman could justify the statement that those that hold to this belief are hostes humani generis, enemies of the human race, and secondly, that they are thus undeserving of toleration. This is precisely where we now find ourselves having cast the redefinition of marriage, rather than the simple granting of this or that right or privilege to homsexual relationships, as an issue of justice. Of course, as was his wont, Scalia sagaciously summarized the bravado involved in this, only two years after Windsor, in his Obergefell dissent:
But what really astounds is the hubris reflected in today’s judicial Putsch.The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
I don’t think there is any way around this now. Having framed the redefinition of marriage as a matter of justice, having accused all those opposed to any such redefinition as motivated by irrational animus, it would appear incoherent to tolerate the propagation of such beliefs, in whatever setting, that they believed were wrong, unjust and harmful. Now, I think this was a deliberate strategy by the leading proponents of the redefinition of marriage because it is something that they do not want to tolerate; the question remains whether its lesser proponents do as well?