Justice Antonin Scalia’s address to Georgetown University law students on Monday afternoon was mostly inspiration and bonhomie: work hard, take advantage of all that is offered, become “learned in the law.”
But a question about whether courts have a responsibility to protect minorities that cannot win rights through the democratic process — the issue that animated the court’s landmark decision this year on same-sex marriage — brought a caustic response.
“You either believe in a democracy or you don’t,” Scalia said. “You talk about minorities — what minorities deserve protection?”
Religious minorities are protected by the First Amendment, Scalia said, and so are political minorities. But beyond that, he asked rhetorically, what empowers Supreme Court justices to expand the list.
“It’s up to me to decide deserving minorities?” Scalia asked. “What about pederasts? What about child abusers? So should I on the Supreme Court [say] this is a deserving minority. Nobody loves them.”
“No, if you believe in democracy, you should put it to the people,” he said.
In a blistering dissent to the court’s 5-to-4 decision in June that the Constitution protects the right of gay couples to marry, Scalia said such decisions should be up to the people and their representatives.
On Monday, he said, “The notion that everything you care a lot about has to be in the Constitution is a very dangerous notion.”
He said, “It begins with stuff that we all agree upon…and at the bottom of that slope is same-sex marriage.”