Antonin Scalia on Families & Children
Supreme Court Justice (nominated by Pres. Reagan 1986)
Let states decide same-sex marriage; keep federal DOMA
In United States v. Windsor, the Supreme Court ruled that the Defense of Marriage Act, which defined the term "marriage" under federal law as a "legal union between one man and one woman" deprived same-sex couples who are legally married under state laws
of their Fifth Amendment rights to equal protection under federal law.
Situation: Edith Windsor and Thea Spyer were married in Toronto, Canada in 2007. Their marriage was recognized by New York state, where they resided. Upon Spyer's death in 2009,
Windsor was forced to pay $363,000 in federal taxes, because their marriage was not recognized by federal law.
OnTheIssues explanation: This ruling led to a series of state legalization of same-sex marriage, as well as federal equality of
same-sex rights (but not federal equality of marriage).
Opinions:Majority: Kennedy, Ginsburg, Breyer, Sotomayor, & Kagan; dissent: Roberts, Alito, Thomas & Scalia, on mixed grounds of federalism & traditionalism.
Source: CNN.com on 2012 SCOTUS docket #12-307
, Jun 26, 2013
Rights are a zero-sum game; somebody loses rights
In Michael H. vs. Gerald D. (1989), the Court acknowledged the concept of "marriage" and denied the male mistress rights to the child he conceived with a married woman.
But the opinion rejecting the adulterer's claims to his biological child was shockingly narrow 5-4 decision.
Justice William Brennan's blistering dissent cited the "freedom not to conform."
But as Justice Antonin Scalia pointed out in the majority opinion, one way or another, somebody loses rights. Rights are a zero-sum game.
If the Court were to grant the male mistress his "freedom not to conform," it would rather severely constrict the husband's "freedom to conform."
Source: Guilty, by Ann Coulter, p. 62-63
, Nov 10, 2009
1st Amendment protects videogame violence as "speech".
Justice Scalia wrote the Court's decision on BROWN v. ENTERTAINMENT MERCHANTS on Jun 27, 2011:
A California law imposed $1000 civil fines on persons who sold or rented to minors "violent video games." The video game industry sued to prevent enforcement of the law.
HELD: Delivered by SCALIA; joined by KENNEDY, GINSBURG, SOTOMAYOR, and KAGANVideo games are a form of speech and are subject to protection under the First Amendment because it has proved difficult to distinguish between politics and entertainment. Games communicate ideas through literary devices. A well defined constitutional tradition is that restrictions based on the content of speech are permitted only in only a few areas, such as obscenity, incitement to violence, or uttering fighting words. Depictions of violence are not within this tradition. California has not chosen to restrict those other media, e.g., Saturday morning cartoons, therefore California's law is underinclusive, suggesting that it disfavors a particular speaker or viewpoint.
CONCURRED: ALITO concurs in judgment; joined by ROBERTSThe California law should have been struck down on due process grounds as "vague": It lacked sufficiently narrow definition of "violent video game" so that a retailer would be put on notice. The Court should not have resorted to the First Amendment and should have been far more careful and moved with more deliberation in evaluating a new technology, since the future may find participating in a video game is actually different from watching movie.
DISSENT: THOMAS dissentsThe Founders would not have seen any right to speak to a minor other than through his parents, which is what the California law permits.
DISSENT: BREYER dissentsThe California law withstands other First Amendment's strict scrutiny.
Source: Supreme Court case 11-BROWN argued on Nov 2, 2010
Child upbringing is an unalienable right.
Justice Scalia wrote the dissent on TROXEL v. GRANVILLE on Jun 5, 2000:
Washington law permits “any person” to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest. Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’ mother, did not oppose all visitation, but objected to the amount sought by the Troxels.
(O’Connor, joined by Rehnquist, Ginsburg, and Breyer; Souter and Thomas concurring) Washington’s breathtakingly broad statute, as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Because we rest our decision on the sweeping breadth of the Washington law, we do not consider the primary constitutional question. We do not, and need not, define today the precise scope of the parental due process right in the visitation context.
The Washington law merely gives an individual--with whom a child may have an established relationship--the procedural right to ask the State to act as arbiter, through the entirely well-known best-interests standard, between the parent’s protected interests and the child’s. Accordingly, I respectfully dissent.
In my view, it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. In short, a fit parent’s right vis-à-vis a complete stranger is one thing; her right vis-à-vis another parent or a de facto parent may be another. In my view the judgment under review should be vacated and the case remanded for further proceedings.
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” in the Declaration of Independence.
Source: Supreme Court case 99-138 argued on Jan 12, 2000
Rape victims cannot sue their alleged attackers.
Justice Scalia joined the Court's decision on UNITED STATES v. MORRISON on May 15, 2000:
The petitioner alleged that she was raped while a student at the Virginia Polytechnic Institute, and that this attack violated [part of the Violence Against Women Act], which provides a federal civil remedy for the victims of gender-motivated violence.
Held:(Rehnquist, joined by O’Connor, Scalia, Kennedy, and Thomas)
The Commerce Clause does not provide Congress with authority to enact a federal civil remedy [a lawsuit]. Section 5 of the Fourteenth Amendment, which permits Congress to enforce equal protection of the laws, also does not give Congress the authority to enact [such a law. Despite] pervasive bias in various state justice systems against victims of gender-motivated violence, the 14th Amendment prohibits only state action, not private conduct.
The Federal Government persists in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence,
we will continue to see Congress appropriating state police powers under the guise of regulating commerce.
Dissent:(Souter, joined by Stevens, Ginsburg, and Breyer)
The Court says both that it leaves Commerce Clause precedent undisturbed and that the Civil Rights Remedy of the Violence Against Women Act of 1994 exceeds Congress’s power under that Clause. I find the claims irreconcilable and respectfully dissent. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. A mountain of data assembled by Congress shows the effects of violence against women on interstate commerce. Today’s majority, however, finds no significance whatever in the state support for the Act based upon the States’ acknowledged failure to deal adequately with gender-based violence in state courts, and the belief of their own law enforcement agencies that national action is essential.
Source: Supreme Court case 99-5 argued on Jan 11, 2000
Page last updated: Sep 21, 2020