Scalia
Lashes ‘Law-Profession Culture’
Legal
Times, July 7, 2003
By Tony Mauro
In his angry dissent in the June 26 gay rights case
Lawrence v. Texas, U.S. Supreme Court Justice Antonin Scalia reserved some of
his sharpest words not for the Court majority or for homosexuals, but for what
he called a “law-profession culture that has largely signed on to the
so-called homosexual agenda.”
Later in the dissent, he took aim at fellow lawyers
again: “So imbued is the Court with the law profession’s
anti-anti-homosexual culture that it is seemingly unaware that the attitudes
of that culture are not obviously ‘mainstream.’”
The venom Scalia displayed for the profession he has
belonged to for more than 40 years still resonates nearly two weeks after the
ruling, and has left some of his fellow lawyers asking: What was that all
about? Friends and foes alike say the outburst reflects Scalia’s deep and
long-simmering disaffection with what he sees as the profession’s
abandonment of its traditional above-the-fray stance in the “culture wars”
of the day. Instead of staying aloof from those debates or refereeing them,
Scalia laments, top lawyers have cast their lot with the liberal elites he
abhors.
“It’s more than animus towards the legal profession.
He has animus towards the entire intellectual elite that tries to force values
on society through the courts when it can’t get them through the
legislature,” says American Enterprise Institute senior scholar Robert Bork,
a friend of Scalia’s and a former Supreme Court nominee.
Georgetown University Law Center professor Chai Feldblum,
who wrote a pro-gay rights brief in the Lawrence case on behalf of nearly 20
gay and lesbian lawyers groups, takes a more psychoanalytic view. “He is
deeply frustrated and bewildered about how quickly some moral views have
changed,” she says. “And when you are frustrated and bewildered, you try
to find some group to blame it on.” Lawyers and their professional
organizations are a nearby target, Feldblum suggests, though she asserts they
don’t deserve that status. “Lawyers were not in the vanguard on this
issue, by any means.” In Scalia’s view, lawyers’ organizations should
stick to their knitting—debating issues relating strictly to the
profession—rather than getting in the middle of social policy debates.
In 1981, Scalia chaired the American Bar Association’s
administrative law section and immersed himself happily in the ABA’s
byzantine structure of sections, divisions and forums. But then came leaked
disclosures of the ABA’s divided rating of Bork in 1987, and its endorsement
of abortion rights in 1990 and again in 1992.
Scalia drifted away from the ABA, dropped his membership,
and now rarely if ever appears at any of its hundreds of events. One ABA
insider says the split between Scalia and the ABA is a “chasm.”
For the ABA, then, to file a brief in Lawrence on the
side of gay rights must have been the final insult for Scalia.
In that brief, the ABA noted that as long ago as 1973,
the organization’s house of delegates urged the repeal of state laws against
homosexual conduct. The association has taken other steps in favor of gay
rights, the brief also said, including its approval in 1994 of a policy
requiring that ABA-accredited law schools not discriminate on the basis of
sexual orientation in admissions.
ABA President Alfred Carlton Jr. shrugs off Scalia’s
attack on lawyers as part of the “general criticism the profession always
gets when we try to defend and enforce constitutional rights. That’s our job
... If this issue isn’t central to the legal system and jurisprudence, then
I don’t know what is.”
Carlton adds, “I’m sorry Justice Scalia is unhappy
about losing. We, obviously, were on the right side of the case.”
In his Lawrence dissent, Scalia did not mention the ABA
brief or policies, but instead pointed his finger at the Association of
American Law Schools, as he did in a 1996 dissent in Romer v. Evans. The
association requires members not to discriminate in hiring and admissions, and
also excludes from membership any law school that allows its students to be
interviewed by job recruiters from firms that do not hire homosexuals.
AALS President Mark Tushnet, a professor at Georgetown,
says Scalia’s comments mystified him. “He has a bee in his bonnet about
our policy, clearly, but I don’t understand its relevance.”
When the AALS policy took effect, some religiously
affiliated law schools resisted, Tushnet says, but eventually the issue was
worked out. He also notes that membership in AALS, which Scalia said is a must
for any “reputable law school,” is not necessary for ABA accreditation.
Bernard Dobranski, former dean of Catholic University of
America Columbus School of Law, negotiated an agreement with the AALS in the
1990s in which the law school recognized “the inherent value and dignity of
all members of the human family,” and pledged nondiscrimination in general,
but held to Catholic teachings that disfavor homosexual conduct. “We were
able to sit down and work out a resolution,” he says.
Now, Dobranski is dean of Ave Maria School of Law, which
graduated its first class of 67 in May. A conservative Catholic school founded
by Domino’s Pizza billionaire Tom Monaghan, Ave Maria won accreditation by
the ABA last year and won’t be eligible for AALS membership for several
years.
Dobranski agrees with Scalia to some extent,
acknowledging that for a law school adhering to Catholic teachings, leaders of
the legal profession can present a “barrier you have to contend with.” Law
professors with minority views on sexual orientation discrimination have
difficulty being heard. But as far as the AALS policy cited by Scalia goes,
Dobranski hopes to do at Ave Maria what he did at Catholic: come to agreements
that respect the positions of both sides.
The AALS’s Tushnet also thinks Scalia is right to the
extent that “clearly, the legal profession and the law professoriate is
strongly in favor” of nondiscrimination against gays, as is the “elite
culture” in general. “But I don’t agree that there is a discrepancy
between elite opinion and the general public on this,” he says.
New York Law School professor Art Leonard, who has
tracked the legal profession’s stance toward gay rights for decades, says
support is indeed widespread, including not only law schools but in the
private sector—where more and more law firms allow benefits for domestic
partners, and gay lawyers are actively recruited.
Another dramatic change that may be a factor in
Scalia’s world view, Leonard says, is “the very open presence of gay law
clerks at the Supreme Court. I’d like to see Scalia have a few.”
Joyce Murdoch, co-author of the 2001 book “Courting
Justice” on the Supreme Court’s handling of gay rights, says she and
fellow author Deb Price interviewed many gay law clerks and could not find any
who worked for Scalia. But her book does recount a 1996 moot court session at
New York Law School, where Scalia presided over a hypothetical gay marriage
case.
“What makes you think that this court has a capacity to
make the judgment for the society that not even a single state has made?”
Scalia asked angrily at one point during the moot court.
At that session and in his Lawrence dissent, Murdoch
says, “he is giving voice to a position’s dying moments—the last gasp of
unlimited heterosexual privilege.”
Even Scalia’s syntax in using the label “law
profession” rather than “legal profession” seems pejorative to some—in
the same way that conservatives sometimes dis the Democratic Party by calling
it the “Democrat Party.” But legal writing expert Bryan Garner says Scalia
did not necessarily mean to be derogatory when he used the noun law instead of
the adjective legal in describing the profession. “It’s not the standard
idiom,” Garner says, but it does appear in 19th century usage and in phrases
still in use today, such as “law teacher.”
“Justice Scalia often finds a special way of putting
things, doesn’t he?” says Garner, who notes that his own company is named
LawProse Inc.—not LegalProse.
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