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Scalia's Joke Was Just a Joke

W!nston

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Scalia's Joke Was Just a Joke
BloomberView | By Noah Feldman | April 29, 2015 3:27 PM EDT

21067263d77d691603d57aa5728db645bda7ccf7.jpg

Did you hear the one about...?

It’s pretty unusual for oral arguments at the U.S. Supreme Court to be interrupted by a protester -- but that happened Tuesday during the gay-marriage case. As Solicitor General Donald Verrilli got up to make a pro-gay-marriage argument on behalf of the U.S., a protester called out, “If you support gay marriage, you will burn in hell!” Then he said, “It’s an abomination!” at which point he was forcibly removed from the courtroom. The official transcript records the protester's words only as “interruption,” but reporters in the room relayed the content.

After the incident, Chief Justice John Roberts graciously asked Verrilli, “General, would you like to take a moment?” (The solicitor general is addressed as “General,” at the Supreme Court, if nowhere else.) Verrilli said he would, then said he was ready to proceed if the court was. Roberts replied, “Well, we’re ready. OK.” Justice Antonin Scalia then piped up: “It was rather refreshing, actually.” The official transcript records “laughter” in the room.

What happened in this noteworthy moment? Jeffrey Toobin, one of the most astute court watchers, wrote that Scalia’s joke was “shocking” and “ugly” -- apparently, he construed Scalia's comment as an expression of sympathy with the protester. With due respect to Toobin, I think this interpretation is wrong. Scalia meant something different -- and his levity serves to underscore why, for supporters of gay marriage, the protester in the courtroom actually performed a great if unintended favor.

Start with what Scalia’s joke meant -- and why people laughed in the courtroom. Scalia is the fastest wit on the court, and a study recently showed that he elicits laughter far more frequently than the other justices. In context, Scalia was almost certainly saying that what he found “refreshing” was the moment of silence that followed the protester's removal -- in contrast to the constant give-and-take of an oral argument.

I’d even argue that Scalia meant the word “refreshing” to be funny by reference to the old Coca-Cola slogan, “the pause that refreshes.” The court had just taken a pause -- which is why Scalia instinctively thought, correctly, that a reference to refreshment would make people laugh.

Cutting the tension of the protester’s intervention with a light joke was itself an act of sympathy to the gay people in the audience. That isn’t to say that anyone in the room who had just been the target of the protester's attack needed Scalia’s help. It’s merely to recognize that, when something terribly upsetting has just occurred, one way to defuse the tension is to make a joke. Sometimes the strategy is mistaken or misguided. Sometimes it might imply that one doesn’t take the offense seriously. But the person making the joke is often actuated by good intentions, not bad.

Scalia opposes same-sex marriage -- of that there can be no doubt. But he’s gone out of his way to say in his opinions over the years that one can oppose gay rights or gay marriage without anti-gay animus. One might conclude, as Toobin did, that Scalia’s joke came from a place of offense -- jokes reflect the unconscious, as Sigmund Freud famously argued. But in this instance, the best and most charitable interpretation is that Scalia was making fun of the situation to defuse it.

The moment had cultural significance beyond Scalia, however. The protester’s interruption was a stark reminder to the justices that much opposition to gay marriage is grounded in a deeply felt, religiously grounded antipathy to homosexuality itself. That fact is painful, but not without constitutional significance.

Justice Anthony Kennedy has grounded his jurisprudence expanding gay rights in the concept of equal dignity. To convince him, opponents of gay marriage must argue that the state can prohibit gay people from marrying without violating their dignity. The protester’s outburst showed just how difficult that argument is to make in the real world. Can anyone really say that the protester’s outburst reflected respect for the dignity of gay people?

Yet this religiously based opposition is one of the most complicated features of the gay-marriage debate. And that complexity is compounded by the fact that marriage is both a civil act and an act that continues to possess profound religious significance for many. When religious sentiment crosses into the disparagement of other human beings, as it sometimes does, should we conclude that the sentiment violates our constitutional commitments?

Skeptics of Kennedy’s jurisprudence have long said no. The Constitution, they argue, cannot protect feelings or emotions. Equal treatment, not equal dignity, should be the touchstone.

But hearing the protester should remind Kennedy’s critics of the point of his equal dignity principle. Political discussion should take place in the framework of calm reason, not contemptuous expressions of moral condemnation. The protester certainly didn’t mean to help the cause of gay marriage. But he did.

SOURCE

I think his 'little joke' was inappropriate at the very least if not insulting not to mention sophomoric.

I wonder if he would make such a joke were the object of the case the Pope?
 
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gb2000ie

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As much as I think Scalia is a complete prat, I don't think there is any 'there' there in this case. If anything I find it endearing that he thought it was important to break the tension after a horrible interruption like that. By making everyone laugh, he undermined the protester, and snapped everyone out of the uncomfortableness of the interruption.

B.
 

W!nston

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That is very understanding of you and I'm sure you are correct as usual... but I have to wonder if he agreed with the words shouted by the protester? I wonder.
 

gb2000ie

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That is very understanding of you and I'm sure you are correct as usual... but I have to wonder if he agreed with the words shouted by the protester? I wonder.

He may well agree, but I doubt that protester influenced his opinion in any way.

If anything I think he would have a negative view of someone who disrespects the Supreme Court in that way.

Like I said, I'm not a fan of Scalia, but in this case, I think the criticism is unfair, and hence counter-productive. I prefer to save my criticisms for the contents of his rulings and opinions!

B.
 

W!nston

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I agree. That protester did not influence his opinion in any way. I never suggested otherwise.

I said his 'joke' was inappropriate, insulting and sophomoric. Then I posed the question 'I wonder if he agreed with the words...?"

I say enough dumb things without having words put in my mouth :rofl:
 
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gorgik9

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I'm with gb on Scalia in this matter.

What truly annoys me in this post is the original article by Noah Feldman, and in particular the three last- from- bottom paragraphs, where Feldman gets in to the rhetoric of "profound religious significance", "religious sentiment" and "feelings and emotions".

At rock bottom we're talking about American fundamentalist evangelical protestant "significance", "sentiment" and "feelings". Adolf Hitler, Heinrich Himmler and the other nazi minions had very deep "feelings" against jews, but as far as I know that is of no importance to deminish the civil rights of jewish American citizens.

Or closer to the American home: Weren't American slaveowners oh-so-christian thinking that slaveowning was of the deepest significance? Didn't they preech St Paul to their own slaves in the fields down in Georgia, South Carolina, Alabama and Arkansas? You bet they did, but they got Abraham Lincoln against them and in the end the American Constitution.

But oh, how long didn't it take until the promises in the constitution started to be realized, how long, how incredibly long until the greatest blues voices can stop singing about Strange Fruit. Still in the 1960s, the racist segregationist interpretation of the Bible was the most powerfull weapon against racial equality, but on this point Martin Luther King Jr's victory was so total, that too many american's don't have an incling that there actually was such a thing as a racist segregationist interpretation, and how powerful it was once upon a terribly bad time...

But the heritage of Lincoln, Whitman, Martin Luther King and Franklin Kameny will prevail.
 
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