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Scalia's Joke Was Just a Joke

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

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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.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net