Justices Thomas and Alito, petty culture warriors

Originally published at: https://boingboing.net/2020/10/07/justices-thomas-and-alito-petty-culture-warriors.html


textualism, aka originalism, is a long con perpetrated by conservative justices to get away with doing whatever the hell they want to. this generally means rolling back the post-1936 20th century. this con has been going for decades but scalia was the one who lifted it to the form of high art.

remember two things–
it isn’t petty if you can justify it by some stretch of the “constitution” and/or “blackstone”.

when someone tells you who they are, believe them.


Yeah, tell that to the Brexiters, who have created a bureaucratic nightmare like this, only a hundredfold. They knew that going in and did it anyway. The regressive in the US will as well, given half a chance. And it’s not they themselves who have to deal with the bureaucracy anyway, that’s a problem for the civil service who they will happily throw under the bus.


This is fucking ridiculous. The clerk was refusing to do their job as a public servant. This isn’t about the rights of the public servant, it’s about the rights of the people they are supposed to serve. The whole thing is insane.

It’s not discrimination to insist that people are able to fulfill the job they are hired to do. If they won’t hire you to work in an office because you have a disability that greatly limits your mobility, they are bigots, but if they won’t hire you to be a firefighter for the same reason, they aren’t.

If they won’t hire you to be a social worker because you won’t eat pork for religious reasons then they are being bigots. If they won’t hire you as a food taste tester for a company that makes pork products they aren’t.

If you can’t approve some marriages because of your religion, go and get a job where approving marriages isn’t a job requirement.


To say the current political environment is just one hit after another is an understatement. My wife and I are both queer and trans, and I have not so jokingly looked at what it would take to immigrate to a first world country where my health care, my rights, and my very existence are not under constant dispute.


If Coney-Barrett is successfully placed on the court and/or if Biff wins again, get ready for the final conservative assault on the socially progressive decisions made over the last half century (at least). The Xtianists expect them to deliver.

While I don’t agree with Douthat on this (especially the part where the defense of bodily autonomy in Roe v Wade was somehow not an issue for courts to get involved with), I can least understand his perspective.

Cardinal Douthat is an ultramontane Catholic who embodies Mencken’s definition of (small-p) puritanism: “the haunting fear that someone, somewhere, may be happy”. His horror of recreational sex and ladyparts constantly shows through his intellectually dishonest NYT columns. I trust his good faith as much as Bobo Brooks’s, which is to say not at all.

It’s also worth noting that Obergefell was argued using the precedent established by a previous 14th Amendment Supreme Court Case — Loving v. Virginia, which protected interracial marriages, like the one that Justice Thomas is in.

Conservatives always carve out a formal or informal exception for themselves. Money is, not surprisingly, their favourite mechanism for achieving that.

One saving grace is that his creature Alito isn’t as clever without his master. But yeah, we know who Alito and Thomas are.


There is a world in which someone could have successfully argued that the US government should have no involvement in marriage at all , and that no one should receive any legal benefits in recognition of a religious union.

I think that’s what Thomas and Alito are most disingenuous about on this issue. Obergefell keeps the government out of the religious aspects of marriage. Obergefell divorces, no pun intended, the “marriage” recognized by churches and mosques and temples and synagogues from the civil contract that is very much the government’s business. Courts have given opponents of same-sex marriage every opportunity under the sun to demonstrate a legitimate state interest, and they simply couldn’t do it.

Civil marriage is nothing more or less than a bundle of legal rights and responsibilities that need to exist in order to give stability and safety to a voluntary adult relationship. It’s a contract, at it’s heart, and contract law is most definitely the government’s business.

What Thomas and Alito are bemoaning isn’t a loss of religious “freedom,” but a loss of a religious primacy in one aspect of our legal system.

Ross Douthat at least made a cogent argument a few weeks ago saying that the Supreme Court’s continued in culture war issues — starting with abortion, through civil rights, into marriage equality — has continuously de-legitimized the purpose of the court from a Constitutional perspective.

Douthat’s criticism of the Court on that front is interesting, because it’s the mirror of his (more appropriate, in my opinion) criticism of Congress for abdicating much of its power and responsibility to the Executive. The Judiciary is supposed to be a co-equal branch of government, and is supposed to provide a check on the democratic impulses of our country. The fact that the Court is, from time to time, ruling contrary to what the results of a popular election might be is a feature, not a bug.


It’s also worth noting that Obergefell was argued using the precedent established by a previous 14th Amendment Supreme Court Case — Loving v. Virginia , which protected interracial marriages, like the one that Justice Thomas is in.

I believe that is the key point and the best way to attack Thomas at least on this topic. His own marriage would have been, for many decades, considered illegal, because racists used the bible as proof that interracial marriages were inherently against the word of God. It took a Supreme Court ruling - not the states who banned those marriages, mind you - to correct that injustice. But now he argues that it must have been okay, because we daren’t say government should NOT OBEY THE LAWS OF ANY PARTICULAR RELIGION. That’s literally the 1st fucking amendment of course, the one the right wing hates the most.

And WHOSE religion wins? For every belief a religion has that is nonsensical and has no real bearing on “law and order”, another branch or faith believes the opposite. Murder, most of them seem to believe is bad (except if you’re murdering those who are of a different religion and resist your attempts to persuade them of course, but we’ll overlook that for now). But what about requirements for certain styles of dress, requirements for “thou shalt not work on these days,” food restrictions, etc? Whose religions win the argument? Who is the one being “oppressed” by SOMEONE ELSE doing something that is a “sin” to them?

Religion is a personal belief system. It is NOT a belief system government should impose, and in fact, government is mandated to avoid any semblance of religious support. The textualists and originalists would do well to consider why they ignore their own views on this particular topic and not the 2nd amendment (“well regulated militia”) or the 4th amendment (“illegal search and seizures”), and so on.


Its a blatant fallacy that somebody’s religious freedom is impinged by somebody else’s marriage.


If your religious beliefs interfere with carrying out your job according to the law, then you have to get another job, or have your employer give you another job.

What Kim Davis was trying to do is no different than a cop who decides to break the law to satisfy his own personal bias: an abuse of a power granted by the public.

And there is no constitutional right regarding being offended.


From the article:

Writing for himself and Alito, Thomas said that the court’s decision “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”

If a “religious adherent” argued that by Leviticus 20:10 they should have the right to kill adulterers, would Thomas and Alito dismiss their religious beliefs? From The King James Bible on gutenberg.org:

20:10 And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death.

How about someone who kills a child who cursed at their parents? [Yes, I know “curseth” probably had a different meaning when the Bible was written, but let’s assume how people today would interpret it for sake of argument.] Leviticus 20:9 says:

20:9 For every one that curseth his father or his mother shall be surely put to death: he hath cursed his father or his mother; his blood shall be upon him.

How many people would have survived their teenage years if this were strictly enforced?

If Thomas or Alito want to enforce religious law, let them join a seminary and become priests. Though in that situation they’ll still need to obey civil law too; no stoning adulterers.


I would argue that the same should hold true for Justices of the Supreme Court.

They can’t put their religion in a blind trust, they don’t recuse themselves when their religious beliefs have potential conflicts of interest in legal cases before them, and their belief in the supernatural leaves their minds open to irrational thought when considering complex issues. I think religious people shouldn’t be allowed to be on the Supreme Court.


This is yet another example of GOP hypocrisy. They go around spewing that they don’t want ‘activist’ judges. Then they place activist judges on the bench.

Both of these right wing activists were placed there by the Bush clan, yes.


“Activist judges” was always a projection.


It’s been a long time since I was in a history class, but my memory is that this was the specific reason for the separation of church and state.

Even back in the beginning, none of the 13 colonies trusted each other to have the same version of religious rules. They explicitly didn’t want each other defining rules for them.


Not to brag, but I’m gay and I performed LOTS of crimes in the state of Alabama in the early '90s

(breathes on fingernails… polishes them on shirt front)


In the 1960s, a Kim Davis wouldn’t have wanted to let an interracial couple marry. But the religious freedom argument seems new for this decade: previously it was “states rights” and, laughably, that it was for the interracial couple’s own good that they not be allowed to marry (what with the social opprobrium, etc.).


Considering that the many Americans continue to be religious, including quite a number of those who are already judges who manage to rule impartially, I disagree. It always depends on the individual in question. Will some be unable to be impartial because of their faith? Okay, no justice. Can they be impartial? Come on.

What matters is individual action here, nothing more, nothing less.


Plus there were the bloody examples in Europe, with religion tied to politics, in the previous century.


Wouldn’t making the things you did legal be an affront to your religious dignity? Because then you’d just have been being gay and doing things.