Steven D. Smith, The Jurisprudence of Denigration, U.C. Davis L. Rev (forthcoming, 2014), available at SSRN.
Steven D. Smith has written another characteristically challenging paper. I fear that the paper, “The Jurisprudence of Denigration,” will be accepted without cavil by those who tend to disagree with decisions like United States v. Windsor or Lawrence v. Texas, and rejected without hesitation by those who champion those decisions. Either move would be unfortunate. This is a paper that says something important about the nature of modern constitutional and moral rhetoric surrounding hot-button social issues, and the uneasy position of judges and scholars as they attempt to find legally serviceable language with which to address social controversies in real time.
The paper’s argument has wide-ranging implications but is blissfully clear and simple. In Windsor, Justice Kennedy argued that section 3 of the Defense of Marriage Act was the product of “a bare congressional desire to harm a politically unpopular group”—that it came from a “purpose . . . to demean,” “injure,” and “disparage.” As Smith writes, “Justice Kennedy and the Court thereby in essence accused Congress—and, by implication, millions of Americans—of acting from pure malevolence.” This “extraordinary claim” forms part of a “discursive pattern” by judges and scholars that Smith calls “the discourse of denigration.” And it is wrong and dangerous. “Precisely contrary to its irenic and inclusivist intentions, by maintaining and contributing to that destructive discourse, the Supreme Court aggravates the conflict that is often described, with increasing accuracy, as the ‘culture wars.’”
At this point I can envision the supporters of Winsdor hastily yanking on the cord and seeking to get off the bus. But they should stick around, because Smith has some larger, interesting claims to make. Those claims do not require one to abandon support for Windsor or LGBT rights, but simply to ask how the Court gets there. Kennedy may have been arguing, Smith suggests, “that to disapprove of homosexual conduct is to declare or deem persons prone to such conduct to be in some sense lesser or inferior beings.” But that is a logical fallacy: “From the fact that a person is inclined to some behavior deemed immoral [by others], . . . it simply does not follow that the person is in any sense a lesser or inferior human being. And while those who disapprove of some behavior as immoral may believe that people who engage in the behavior are lesser human beings, they need not believe any such thing.” Even if supporters of DOMA and similar laws actually do regard gays and lesbians as “in some sense lesser human beings,” that still does not prove ineluctably that they are acting from a bare desire to harm those individuals. Continue reading "Denigration as Forbidden Conduct and Required Judicial Rhetoric"