My colleague Richard Posner teaches at our law school, is a judge on the U.S. Court of Appeals of the Seventh Circuit, has repeatedly been mentioned as a candidate for the Supreme Court (he says he’s too old now), and is the most cited American legal scholar of the twentieth century. He’s also written 40 books, so is clearly an overachiever. Posner is generally characterized as a conservative, but that’s not an accurate label since he favors the legalization of both marijuana and gay marriage.

Posner’s penchant for leftish views was on show yesterday with an op-ed in the New York Times co-written with Eric Segall, a law professor at Georgia State. The piece, “Justice Scalia’s majoritarian theocracy“, decries the increasingly theocratic and loopy views of Supreme Court Justice Antonin Scalia. I give a few excerpts below (my emphasis). I hadn’t realized how anti-gay Scalia really was, though of course he’s a devout Catholic.

The Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each.

In Lawrence v. Texas, for example, where the court invalidated Texas’ ban on homosexual relations between consenting adults, Justice Scalia complained that: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He added: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.’”

. . . In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

. . . Obergefell [Obergefell et al. v. Hodges et al.: the gay-marriage case]  seems to obsess him. In a speech at Rhodes College in Memphis, he said that the decision represents the “furthest imaginable extension of the Supreme Court doing whatever it wants,” and that “saying that the Constitution requires that practice” — same-sex marriage — “which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” The decision, he said, “had nothing to do with the law.”

The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical. It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.

The notion that our laws should somehow cater to “the religious beliefs of many of our citizens” is bizarre and scary—and, as Posner and Segall note, clearly violates the First Amendment to the Constitution, intended to protect minority faiths and nonbelief. And the comparison between gays and child molesters is reprehensible. Scalia’s statements bespeak someone so extreme, so marinated in faith, that he’s actually unstable—no longer able to judge judiciously. If judges could be fired, I’d say Scalia should get the pink slip immediately.

As an aside, Posner’s Wikipedia page describes his devotion to his Maine Coon cat, Pixie: I’ve previously featured on this site a photo of Pixie provided by judge Posner. I’ll show Pixie again, but go to the original post to see Posner’s notes on his beloved felid.

Two years ago The Daily Beast featured an interview with Posner, mainly about the way he writes. But among the Q&A I found this:

Tell us something about yourself that is largely unknown and perhaps surprising.

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Check out that last sentence. What devotion (of the man, not the cat)!

 Here’s Judge Posner with Pixie’s predecessor, Dinah (see the interview at Concurring Opinions):