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February 13, 2016

High Court's Most Sex-Negative Justice, Antonin Scalia, Dead At 79

BIG BEND, Tex.—U.S. Supreme Court justice Antonin Scalia, a veteran of nearly 30 years on the high court bench, has died on an unidentified ranch in west Texas. It has been reported that he died peacefully in his sleep after a day of quail hunting. Appointed to the Supreme Court by President Ronald Reagan in 1986, Scalia has always claimed to be a constitutional "originalist," despite a career in which he consistently ignored the Ninth Amendment when it came to questions of citizens' unenumerated rights, and as a staunch Catholic, he allowed his religious views to color many of his decisions. He made this clear in speeches he gave to various religious groups in November, 2004, where he said at one such speech, "We are fools for Christ's sake. We must pray for the courage to suffer the contempt of the sophisticated world." "You know, in the early years, the Bill of Rights referred to the first eight amendments." Scalia told New Yorker reporter Jennifer Senior in a 2013 interview. "They didn’t even count the Ninth. The Court didn’t use it for 200 years. If I’d been required to identify the Ninth Amendment when I was in law school or in the early years of my practice, and if my life depended on it, I couldn’t tell you what the Ninth Amendment was." This was just one of Scalia's departures from "originalism," since the Bill of Rights has always been considered to include the first ten amendments. Another would be the opinion he authored in District of Columbia v. Heller, which held that, despite the opening clause of the Second Amendment—"A well regulated Militia, being necessary to the security of a free State"—each citizen has a constitutional right to own one or more guns. Scalia decided that rather than being a limitation on gun rights, that phrase was simply explanatory (or in his words, "prefatory") and "a prefatory clause does not limit or expand the scope of the operative clause." As to Scalia's religion playing a major role in his judicial thinking, one need look no further than his dissent in Lawrence v. Texas (2003), which overturned the prior high court decision, Bowers v. Hardwick (1986), which had allowed homosexual acts to remain criminal. However, the high court, then led by Chief Justice William Rehnquist, voted 6-3 to recognize the rights of homosexuals to engage in "consensual sodomy" in the privacy of their own homes, basing it largedly on the Due Process Clause of the 14th Amendment—an amendment that Scalia has held referred only to the rights on then then-newly-freed slaves when it was passed. "It seems to me that the 'societal reliance' on the principles confirmed in Bowers and discarded today has been overwhelming," Scalia wrote. "Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Among those decisions "sustainable only in light of Bowers"? Williams v. Pryor, which upheld Alabama's ban on sex toys; Owens v. State and Sherman v. Henry, both of which upheld laws banning adultery; and Barnes v. Glen Theatre, which banned nude dancing in strip clubs. But perhaps more central to the adult industry was the 1990 case of FW PBS, Inc. v. City of Dallas, which overturned the city's regulatory regime that included zoning, licensing, and inspections of sexually oriented businesses that included adult arcades, bookstores, video stores, cabarets, motels, theaters. The Supreme Court's review of the ordinance resulted in a record replete with fractured opinions, but in all, five other justices joined the opinion of Sandra Day O'Connor that the law was unconstitutional, a prior restraint on sexual expression which placed "unbridled discretion in the hands of a government official or agency" with respect to the location, licensing, or inspection of adult businesses. Scalia, however, dissented from the judgment, arguing that the Dallas ordinance legitimately regulated the "pandering" activity of adult businesses, which he felt was consistent with the high court's ruling in Ginzburg v. United States (1966), which held that publisher Ralph Ginzburg had advertised his (non-obscene) magazine Eros in an obscene manner. "FW PBS v. Dallas is a very important case to the adult retail business," observed prominent First Amendment attorney Clyde DeWitt. "In the oral argument on the case, he asked the attorney for the petitioner, 'Well, what about a store that sells televisions? Is that protected by the First Amendment?' "He asked a lot of questions like that," DeWitt added. "To him, oral argument was like a sport, especially in cases when he knew, going in, how he was going to decide them. In a lot of these cases, there was nothing in oral argument or in the briefs that was going to change his mind. It was already made up." In fact, it's safe to say that in virtually every case to come before the high court involving sexual rights, and even most cases involving free speech rights in general, Scalia came down against recognizing and/or expanding those rights. But beyond his conservative views, Scalia was only to happy to help his political friends whenever a case might impact their ability to influence congressional power. One situation that gained national attention was when the Supremes were called upon, in 2004, to rule on whether then-Vice President Dick Cheney should be forced to reveal the names and topics of discussion at the National Energy Policy Development Group, which Cheney had chaired in 2001. Scalia was an old duck-hunting partner of Cheney's, and the two were very close, which according to the lawsuit filed by the Sierra Club suggested that Scalia might give greater credence to Cheney's arguments because they were friends. Scalia, however, rejected the call for his recusal, and in the end, after the Supreme Court remanded the case to the Court of Appeals for the District of Columbia, that court ruled that disclosure was not required. Of far greater moment, however, was the case of Citizens United v. Federal Election Commission (2010), where the high court struck down part of the Bipartisan Campaign Reform Act (also known as the McCain-Feingold Act), ruling that independent expenditures by corporations and labor unions to influence elections were allowable under the First Amendment's free speech clause, thus opening the door to "legal fictions" like corporations donating as much money as they pleased to promoted their favored candidates and ballot initiatives. Scalia's concurrence in this ruling was hailed by monied conservatives such as oil billionaires Charles and David Koch, and likely resulted in the overwhelming conservative victories of 2012 and beyond—including the current election. But as many problems as Scalia caused in life, his death may cause even greater ones. Consider: President Obama is currently what is called a "lame duck," meaning that he cannot seek reelection, and his ability to influence the passage of bills through Congress is greatly diminished. Couple this with the fact that the U.S. Senate is split 54 Republicans and 44 Democrats, with two Independents (including presidential candidate Bernie Sanders) always caucusing with the Dems, it means that Obama's likelihood of nominating a liberal-leaning justice and having him/her confirmed by the Senate borders on the impossible. This view was confirmed today on Twitter, when Sen. Mike Lee of Utah tweeted, "What is less than zero? The chances of Obama successfully appointing a supreme court justice to replace Scalia?" He later added, "If anything this will put a full stop to all Obama judicial nominees going forward." Similarly, presidential candidate Sen. Ted Cruz of Texas tweeted, "Justice Scalia was an American hero. We owe it to him, & the nation, for the Senate to ensure that the next President names his replacement." Of course, Cruz hopes that that will be himself, but in any case, a Republican. So what are the ramifications of the high court deciding cases it will hear for the rest of 2015 with only eight justices? "On cases that are important to us, the decisions are going to be 4-4 on the close ones, or 5-3 against us," DeWitt stated. "The situations where this could make a difference are cases that would have been 5-4 against us, which will now be 4-4, and that's really an important concept, because a 4-4 affirmance is as if the Supreme Court never took the case in the first place. " In other words, in such 4-4 cases, whatever ruling was handed down by the lower (appeals) court will stand, though such ruling would only apply to the judicial circuit over which that appeals court has jurisdiction. In any case, whatever ruling a 4-4-divided Supreme Court might make would be considered non-precedential, meaning that the high court could easily overrule itself (and the lower court) if the same or similar issue came before a properly constituted Supreme Court later. It could also hold the case over for a rehearing next term. To say that Scalia's death is important to the adult entertainment community—not to mention sexual rights activists everywhere—would be a major understatement, and only time will tell what the effects of this will be.

 
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