January 30, 2009 2:52 PM
Scalia Blesses Rabbis; Trashes Eurotrash
Posted by Michael D. Goldhaber
Invited to compare the American and Jewish legal traditions of privacy, Justice Antonin Scalia reached out to criticize the European tradition.
Speaking Wednesday at a conference organized by the Institute of American and Talmudic Law, which is affiliated with the Chabad Lubavitch movement, Justice Scalia argued that, under a proper conception of the judicial role, judges have little to say about privacy. He drew a sharp contrast with the European Court of Human Rights, which has developed an expansive jurisprudence on the right to respect for private life, based on a dynamic interpretation of the European Convention of Human Rights Article 8.
Scalia pointed to a 2000 ruling by the Strasbourg-based European court, holding that Britain had violated the Convention’s guarantee of privacy when it prosecuted five men for gross indecency based on private group sex. The justice referred to the conduct in A.D.T. v. United Kingdom as a "five-man homosexual orgy." Scalia joked: "The Court didn't say how many people you need [for the conduct to become public]. Presumably it's somewhere between five and the number it takes to fill the Coliseum."
Although Justice Scalia protested that he was unqualified to pronounce on Jewish law ("my Daf Yomi attendance has been lackluster"), he was drawn later in the afternoon into a comparison of the American and Jewish legal traditions with respect to gossip.
Professor Michael Broyde, a comparative scholar at Emory Law School, observed that under Jewish law, the holder of truthful information has an obligation to keep it confidential; and may only release the data if there is a pressing need for it, the release is narrowly targeted, and the benefit of releasing the data outweighs the cost. Broyde argued that American society is completely different in its approach, with a prurient culture of entertainment and a strong First Amendment bias toward sharing truthful information.
Justice Scalia provocatively countered that "the U.S. tradition is basically the Christian tradition, and it is precisely the same [as the Jewish tradition] with regard to gossip." In the American tradition, Scalia proclaimed, "You don’t say anything shameful about another, even if it’s truthful, unless you need to." The justice added that, in the culture of his youth, scandal-mongering journalists such as Drew Pearson were not seen as respectable. "Where the [Jewish and American] traditions differ is in their legal enforceability," he suggested. "I wouldn't send someone to jail for gossip, but I would send them for penance."
There is little to unify Justice Scalia's various comments on comparative law except his wit--but they nicely capture the contradictions between his temperament and his professed philosophy. Scalia embodies the religious moralizer as preacher of judicial restraint.
It is quaint to think that Justice Scalia's particular childhood experience, as a devout Catholic in 1940s Queens, reflects the one and true "American tradition" of anything. That Scalia seems to think so would be of limited consequence if he walked the talk on judicial humility. But a number of studies have rated him at or near the top of the judicial activism league, whether measured by his proclivity to strike down federal agency decisions or to strike down federal laws and overturn court precedent.
This makes Justice Scalia's religious views dangerous. Scalia has displayed a fascination with Europe's ruling on gay group sex on at least one prior occasion. The "orgy case" is good for easy laughs. But A.D.T. is merely a stand-in for Dudgeon v. United Kingdom, the 1981 European landmark that found gay sex to be covered by privacy. It was ignored by the U.S. Court in Bowers v. Hardwick (1986), but finally followed in spirit in Lawrence v. Texas (2003), over Scalia's vigorous dissent.
God would likely have joined Scalia in dissent (if God follows Orthodox Jewish law) because, as several speakers observed, a duty owed to God may not be waived by a consensus between two men, and admits of no distinction between public and private. Be that as it may, Scalia's continuing urge to engage the godless European Court in debate shows that the advocates of global judicial dialogue are winning.
Ironically, Scalia's Euro-bashing remarks came on an occasion that honors Strasbourg's uniquely broad conception of personal life. January 28 has been loosely dubbed International Privacy Day by some North American advocates of data privacy. Formally, it was Europe's third annual Data Protection Day, which promotes awareness of informational privacy within the 47-nation Council of Europe (widely confused in American publicity for the event with the 27-member European Union). The Council's convention on personal data was signed this week in 1981. Dudgeon came later that year, and, God or Scalia notwithstanding, set in motion the worldwide abolition of discrimination in the bedroom.
Michael D. Goldhaber is the Senior International Correspondent for The American Lawyer, and author of A People’s History of the European Court of Human Rights, recently published in paperback.Make a comment