WASHINGTON, D.C. (February 13, 2016) – Antonin Scalia, who just passed away, recently took the extraordinary step, especially for a sitting U.S. Supreme Court justice, of publicly attacking a anti-discrimination legal action which had just been filed against a decision to discriminate, even before there was even a preliminary ruling, remembers public interest law professor John Banzhaf.
The action in question was a complaint which Antonin Scalia argued that the decision by Catholic University to reverse a long-standing policy, and to insist upon sex discrimination in assigning dorms in which incoming students were to live, may have violated the unique standards set forth in the D.C. Human Rights Act.
As the Wall Street Journal reported it at the time:
“Supreme Court Justice Antonin Scalia criticized Banzhaf’s suit during a speech this weekend . . . Scalia’s speech included a defense of religion in public life, according to the Tribune-Review. ‘Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment – particularly moral judgment based on religious views,’ he said, citing the suit against Catholic’s same-sex dorm policy.
“‘I hope [Duquesne] will not yield – as some Catholic institutions have – to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means,’ Scalia said.”
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But, as the Huffington Post pointed out:
“John Banzhaf — a local lawyer, George Washington University law professor and overall gadfly — was a little surprised when over the weekend, U.S. Supreme Court Associate Justice Antonin Scalia seemingly came out in favor of Catholic University of America’s controversial same-sex dorm policy, encouraging CUA and other Catholic institutions to stand up to ‘politically correct’ forces that would undermine the school’s religious identities and practices.”
“Banzhaf was surprised because as far as he’d realized, the return to same-sex dorms — announced by CUA’s President John Garvey . . . had nothing to do with religion.”
“Instead, in describing the school’s reasons for moving to single-sex housing, Garvey invoked his ideal of an Aristotelian sense of virtue, mixed with a desire to stop students from binge drinking and having casual sex. ‘He cited only secular reasons,’ Banzhaf told The Huffington Post in an interviewon Monday. ‘Same reasons that a non-Catholic university might have: To reduce drinking and hookups and so on. He did not suggest that there is any religious basis for it. It is very clear from Garvey’s own statements that it is totally secular.'”
Antonin Scalia was also very critical when Banzhaf and his law students were able to establish legal standing in the Supreme Court’s SCRAP case to challenge environmental harm which hit everyone equally.
“A big win in the U.S. Supreme Court more than makes up for a temporary setback before a local agency,” quips Banzhaf, who teaches many of Scalia’s decisions and consents in his course.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,