University of Chicago Ernst Freund Distinguished Service Law and Ethics Professor Martha Nussbaum and Wayne State University Philosophy Professor and Debating Religious Liberty and Discrimination author John Corvino discussed religious liberty and LGBT rights Supreme Court decisions May 20 at the University of Chicago's Court Theater in Hyde Park.
The talk followed a matinee performance of The Originalist, which John Strand wrote. The play imagines what a professional relationship between a fictional Black lesbian progressive Harvard Law School graduate named Cat and Supreme Court Justice Antonin Scalia would look like over the course of the year prior to the U.S. v. Windsor Defense of Marriage Act ( DOMA ) decision in June 2013.
Nussbaum spoke about her admiration for Corvino's work "to further what I think is the most powerful theme in this play. That is the need for understanding and dialogue between people who hold different positions."
She noted that Scalia was a law professor at the University of Chicago and while at the school he published a famous article in the law review publication called "The Rule of Law as a Law of Rules" where he described how he used to believe in the British Common Law method of judging but he turned away from that way of thinking. Nussbaum explained that Common Law is where the judges make the laws that at times were based on their own biases.
Nussbaum illustrated, from two areas, where Scalia's "search for rule-governed law led him to results that disappointed conservative scholars"—religious freedom ( in certain instances ) and the Armed Career Criminals Act which he said was too lose and vague regarding what instances would fall under enhanced penalties.
"We need to understand that there was a deeper layer to Scalia's thought, namely his search for fixed rules. But did it give him what he wanted?" said Nussbaum. "You never get away from judgment in how you choose which level of generality you are going to look at the Constitution with. Is it these abstract ideas such as liberty or specific things the Constitution does and does not talk about and that is of course what Scalia did in his rulings."
Corvino noted that Nussbaum has inspired him for many years. He said the play was powerful because it was an example of two people with opposing views coming together with the goal of understanding one another better. Corvino explained that he has debated people from the religious right over the years and has become friends with Maggie Gallagher and Glenn Stanton, both of whom are anti-LGBT. He said these friendships are important to him because "we have to share the world together."
In terms of LGBT Supreme Court cases, Corvino said Justice Anthony Kennedy wrote the majority opinion while Scalia wrote the dissenting opinion in four of the five cases already decided by the court. Corvino outlined the issues involved in each of these four cases—Romer v. Evans, Lawrence v. Texas, United States v. Windsor and Obergefell v. Hodges. He said all of Scalia's anti-LGBT dissents were based on his originalist interpretation of the Constitution. Corvino pondered how Scalia would rule in the pending Masterpiece Cakeshop v. Colorado Civil Rights Commission if he was still alive based on his previous religious rulings versus his originalist view of the law.
"You do get the sense as you read through the LGBT-rights cases that Scalia was increasingly frustrated by the way the tide was turning," said Corvino.
A Q&A session closed the discussion.
The play runs through June 10. To purchase tickets, visit www.courttheatre.org/season-tickets/2017-2018-season/the-originalist/ .
