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Copyright 2000 Associated Press, All rights
reserved.
WASHINGTON, Apr 30, 2000 (AP Online via COMTEX) -- To his admirers,
Antonin Scalia is the Supreme Court justice who emphasizes the
intersection of morality and the law.
Last week, a doctor's lawyer was explaining to the court why Nebraska's
ban on "partial birth" abortions serves no constitutionally legitimate
purpose when his primary inquisitor cut him off.
"The state could have been concerned about rendering society callous to
infanticide ... the horror of seeing a live human creature outside the
womb dismembered," Scalia suggested, his tone approaching exasperation.
"Can't that be a valid societal interest?"
A day later, as the court heard arguments over the Boy Scouts' ban on
homosexuals, Scalia quickly abandoned arcane legal questions.
"They think that homosexuality is immoral," he told a lawyer. So why
must the Scouts accept as a leader "someone who embodies a contradiction
of their message?"
The conservative views of Scalia, the Supreme Court's most colorful
character in black robes, often reflect a passion for what his
supporters call traditional values.
"I think it's important for him to remind us that morality cannot be
divorced from the law," said lawyer Jay Sekulow of the American Center
for Law and Justice, an advocacy group founded by television preacher
Pat Robertson.
"Justice Scalia acknowledges an intersection between law and morality,"
he said. "It's more pronounced now because of the cases the court has
this term -- the partial birth abortion and Boy Scouts cases, the
grandparents' rights case, the school prayer case are all examples."
The court's eight other members also talk and write about the link
between law and morality, but not as forcefully or consistently as the
voluble 64-year-old colleague they call "Nino."
When appointed to the nation's highest court by President Reagan in
1986, Scalia already had a reputation as one of the nation's most
brilliant and conservative federal jurists. The reputation grows.
In 1992, when the court reaffirmed the core of its 1973 decision in Roe
vs. Wade -- that women have a constitutional right to end their
pregnancies -- Scalia said no such right exists.
"I reach that conclusion not because of anything so exalted as my views
concerning the concept of existence, of meaning, of the universe and the
mystery of life," he wrote. "Rather, I reach it ... because of two
simple facts: the Constitution says absolutely nothing about it and the
long-standing American traditions of American society have permitted
(abortion) to be legally proscribed."
When the court said in 1996 that the all-male Virginia Military
Institute must admit women or give up its state funding, there was a
lone dissenter.
"It is precisely VMI's attachment to such old-fashioned concepts as
manly honor that has made it, and the system it represents, the target
of those who today succeed in abolishing public single-sex education,"
Scalia wrote.
When the court that same year ruled that Colorado and other states
cannot bar local gay-rights ordinances, Scalia wrote for the three
dissenters. He defended the "reasonable effort to preserve traditional
American moral values," and said courts should not take sides in the
"culture war" over society's acceptance of homosexuals.
Erwin Chemerinsky, a University of Southern California law professor who
disagrees with many of Scalia's legal opinions, criticized his judicial
approach.
"The irony is he professes that judges shouldn't be making moral
judgments, and he as much as any justice in American history is all
about articulating moral judgments," Chemerinsky said. "They play a key
role in his conservative moral agenda."
More willing than most other justices to leave the ivory tower, Scalia
has not been shy about discussing his religion. A devout Catholic -- one
of his nine children, son Paul, is a priest -- he has urged Christians
to stand up for their beliefs.
"We are fools for Christ's sake," Scalia said, echoing the apostle Paul,
in a speech to the Christian Legal Society at Mississippi College's
School of Law in Jackson. "We must pray for the courage to endure the
scorn of the sophisticated world."
Two other justices, Stephen G. Breyer and Clarence Thomas, also have
spoken in public recently about their religious faith, once a rarity for
Supreme Court members.
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