A lot of things bothered me about Antonin ‘Nino’ Scalia. I am the black sheep of my family, coming from a long and varied family of lawyers, and yet having little interest in the law outside of how it might be applied to my profession, medicine. So I paid only passing attention to the name Scalia, never really knowing enough about him to categorize him into whatever pigeon hole makes organization of life and thought easiest.
But as with so much of public figures’ activities, you hear something every now and then that bothers you, and then you forget the details, only to retain the feeling. What was it about him I did’t like?
Well, he was a conservative, which opens the possibility of his thought processes being dominated by irrational premises, if not illogical processes of thinking. One of the curiosities of intelligent people is that if they start off from the wrong premise, their incorrect conclusions may well flow logically from their initial assumptions, something like the fixed delusions of the paranoid.
An example: God says you only get into heaven if you believe in Him, so atheists are bad.
The premises, of course, are that there is a God, and a heaven, among other things. This is an assumption…an axiom, if you will. The religious right projects into this, and finds it difficult or impossible to believe any sane thinking person might doubt these axioms as real commandments. So they set aside their premises as almost irrelevant because to them, naturally, everybody else either believes them, or everybody else needs an MRI. There is simply no acceptance of any possibility that these premises could be wrong, even though there is no evidence to favor these axioms over any other assumption.
Organized religion consists of a complex set of premises or axioms. Such a set of axioms is expressed in documents, canons, like the Bible. Much like an elegant development of a mathematical construction, a fun exercise might be to reduce as much as possible the number of premises or axioms, so that the entire house of cards depends on only one or two…but that is just fooling around a lot of the time. It is easier, most times, just to accept a lot of stuff as axiomatic: premises are expressed in the Bible, and can be accepted as such en masse, they decide.
The bible says, ‘a man should not lie with a man.’ It probably loses something in the translation, from Koine Greek or Aramaic, but you get the gist of it. The premise is that homosexual activity…come on, we all know what we’re talking about here, as your mind descends into colloquial vulgarities…that homosexual activity is wrong. Once that axiom is accepted (it’s in the Bible, after all), it is pretty easy to remove fundamental human rights from those people. And while it is totally unclear why anyone would want to actually remove those rights, the conclusion follows logically from such a premise or premises.
An extension of this example is ‘gay marriage,’ or, preferably, marriage of two people of the same gender. Americans would say of the ‘same sex,’ but to me that is confusing, because sex is the activity, as in the old joke:
Name? Bill Clinton
Sex? Yes please.
The Bible says homosexuality is an abomination. Most, if not all, organized religions dictate that sexual activity should be confined to married couples, and since the assumption is that married couples will behave sexually, gay marriage leads to an abomination.
Premises, premises, premises.
Antonin Scalia fit comfortably into these thought processes and axiomatic assumptions, and seems therefore to have no problem separating these people from their natural rights. After all, if ‘it’ leads to an abomination, ‘it’ cannot be their ‘right.’
With thoughts like these, I started to remember Scalia.
Not long ago, he commented that perhaps black people would be better advised to study at less demanding post-secondary school institutions, revealing a premise he held that black people were not as smart.
And somehow I associate the concept of ‘freedom of religion,’ but NOT ‘freedom to be irreligious’ with little Nino. People can hide behind the appearance of strict logic for a long time if they blithely assume a false premise that leads to the conclusion they want to bestow upon everyone around them.
So it was with these feelings of naked contempt for the man, that so many others were hailing as a genius of jurisprudence, that I felt not a little insecure for not having the details of my memories at my fingertips. The feelings were there, but the details justifying them were distant.
Canada pulled itself away from this bigotry against homosexual behavior, way back in the sixties when our Prime Minister, Trudeau the Elder, declared that the government had ‘no business in the bedrooms of the nation.’ This moral position allowed us to skip a lot of the contradictions that exist within a multi-cultural society, such as ours, that has greater tolerance of the irreligious. We no longer need to make judgements about certain behaviors because we embraced the premise that we shouldn’t even know about it. Hey presto, co-existence of theists and atheists of every stripe dominate once that subtlety is accepted.
Some might think it a self-delusion, an abrogation of moral responsibility. An ostrich principle. But I very much endorse the idea of not caring about stuff that doesn’t cause anyone any risk of harm, risk that they do not know about or risk that they would not willingly accept.
Not so with Antonin Scalia. Somehow other people’s behavior is detrimental to him, even if only as an idea, a meme, a concept.
I wrote on some Facebook page, in a form of frustration and ventilation:
[With Senator Sanders’ policy changes people who subscribe to Scalia’s ideas might become] healthy and educated. Maybe even well enough to understand stuff, now. Like what is wrong with the Second Amendment applying to individuals. Or why [Read: name of female celebrity suspected of having a medical condition known as AIS] should be legally allowed to have sex with males.
The comment reflects a mixture of thoughts about Bernie Sanders and Antonin Scalia. The first part is easy enough. Senator Sanders wants to find a way for everyone to have access to excellent health care and excellent education. Many argue that it is not affordable, but that is clearly wrong. Canada has excellent health care for everyone, as do many other countries, within variances related to administration and geographic details.
Naysayers argue that education for everyone cannot be afforded, but right now, all education in North America is paid for by people, people right here in North America. Expanding it to all who are capable, and willing to make a go of it, is rather like developing a program of education of grades one through twelve. They probably thought that was too expensive too. You see, we did it before. Now it is irreplaceable.
Reorganization of payment, and the will and determination, is probably all it will take. Not so hard.
The second sentence is an oblique reference to Scalia’s application of the Second Amendment to individuals, instead of just militias or standing armies and police forces, (which people with better health and education might come to understand) which has lead to the 5:1 ratio of firearm deaths when one compares the same in the USA and Canada respectively. Thirty thousand deaths by firearms each year in the USA. Thanks Nino!
But the last sentence is really obtuse (I think I was getting angry, and thus distracted), and really important, unless perhaps you have no working understanding of the value of science…as when someone, for example, like that giant of intellectual jurisprudence, thinks of evolution as a myth because it contradicts his religion.
You see, everyone just assumes they know what a woman is. Or what a man is. I simply do not doubt that Antonin Scalia thought he knew. You think you know, don’t you?
There is a female loudmouth celebrity out there of whom it has been suggested in internet gossip (itself probably pretty useless) that she has Androgen Insensitivity Syndrome (AIS). Personally, I have no idea whether she does or she doesn’t. She appears as an objectively attractive female, though it is hard for me to get past her shrill, nasty, insensitive and illogical thought processes.
But it occurred to me, that in his ignorance, Antonin Scalia would probably agree that this woman should legally be allowed to have sex with males (leave aside the whole marriage bit). His genius mind of giant legal jurisprudence would argue, in some originalist point of view, that the Constitution would have no objection to the formation of some legal statute that allowed this ‘woman’ to have sex with men, or man, perhaps, since monogamy is a religious standard. She’s clearly got breasts and all the other more private bits, and for this argument we can safely assume so. Others with AIS certainly do.
The revelation that came to me, and should have come much earlier, is the reality that biologically, gender is not binary. It is not digital. It is analog.
There is a spectrum. There are a great many conditions which lead to gender ambiguity. That we know about. And it stands to reason that there are great many more that we don’t know about.
Most people with a modicum of biology knowledge would argue that the chromosomal pattern of 46XY is male, 46XX is female (of course, the ‘sexually attractive’ apparently female person mentioned above, if she really has AIS, is 46XY). Scalia might know this; or he might define the female as having breasts and a vagina, the basic male understanding of the female, and he might define males as those with testicles and a penis.
If he read a little and got a bit uppity, he might think that females were the functional result of excessive estrogen:estrogen-receptor complexes, with similar such concepts for males.
While such things might categorize most, they do not categorize all. There is a spectrum, from 46XY with vaginas and breasts to 46XX’s with penises and testicles. And, more commonly of course, also the reverse! And god knows a whole lot in between.
There are huge genetic variations from one person to the next, amongst the thirty thousand genes that define us, and some of those variations will be subject to the affects of lifestyles of our predecessors, not just the genetic makeup of our parents.
Some of the most attractive alluring woman in the world, with wonderfully functional working bits…are men.
That’s right, Scalia. Some of those Playboy centerfolds back in the good old days were men; I don’t know of any Playgirl centerfolds who were women, but I wouldn’t doubt the possibility. 46XX and 46XY, not to mention XXY, and XO. Single nucleotide polymorphisms in a variety of gender related enzymes and proteins can lead to the melding of primary and secondary sexual characteristics, and their respective libidinous desires and proclivities. ‘Imprinting’ of DNA leading to up-regulation and down-regulation of gender defining function is almost certainly a spectrum, much as eye color, and hair distribution.
It is safe to assume that variations will exist between, and within the genders with respect to the structure and function of sexual characteristics, and sexual desires. And not just a few, but likely thousands of them, some subtle, some not so much.
If a perfectly formed female body can co-exist with the 46XY (male) chromosomal structure defining it, why so much doubt about the biological variation in terms of attraction, desire, instinct and drive. The average young male and female on the archetypical desert island will find a way to have sex. While being raised in a loving rational family environment might make the whole experience better, few have any doubts about the usual ultimate outcome of each child-becoming-early-adolescent, figuring out what is tab A and what is slot B. That is instinct, for the most part, driven by biology, itself driven by chemistry and DNA. Huge numbers of variables of chemistry and DNA. Huge variety of structure and function. Huge differences in desires and goals.
And we know now that Nature and Nurture overlap a bit, in that life experiences actually change the quantifiable regulation of genetic products. So the question of whether gender preference is biochemical or psychological is irrelevant from a functional point of view. Biochemical is psychological. Psychological is biochemical.
Learning and unlearning does not apply. There is nothing to be fixed. It is what it is.
The dogma of the gender bigot, the religious right and homophobe, specifically, or the moral critic more generally, is just no longer supportable, if it ever was, when it comes to gender identification and sexual desire. Even setting aside the fact that it is none of their business.
Person A cannot have sex with person B, you say? Why not? God didn’t tell us everything we need to know in the Bible. The Founding Fathers of the United States didn’t speak of it in the Constitution.
For me the overwhelming question has always been, “Why should they care?” With the reality of a broad view of gender ambiguity from structure to function to lust and to desire, to comfort and to pleasure, with the realization that differentiating between male and female and gay and straight and bi and trans is often impossible and certainly invasive, the question quickly becomes, “How can you possibly know? And anyway, why on earth do you care?”
Such hubris. Such overwhelming hubris.
If two people love each other, we should rejoice. And we should answer the critics, “Everyone is different, really, and in that infinite variety, everyone is the same; those two people who love each other…well…their’s is the happiness…and that alone is why we should care, that alone is what we should care about.”