In his dissent to the Supreme Court ruling in United States v. Windsor, Justice Antonin Scalia took a moment to describe how the majority ruling, which struck down the federal Defense of Marriage Act, characterizes those who would dispute it:
In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed [judgment] is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.
To Scalia, the imputation was more than just insulting. It was gratuitous. If judges wish to change the law, they should be able to do so without casting the other side as malicious and inhumane.
It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
“Hostes humani generis” was originally a term used to describe pirates—criminal opportunists who operate on the high seas outside the bounds of any country and stand against the moral order of civilization. To be an enemy of the human race is to be insupportable under any form of government, to be stateless, lawless, and a threat to society at large.
In 2013, when the Windsor decision was handed down, it was easy to see which way the debate over gay marriage was going. During my college years (2007-11), I lived amidst a youth culture wherein disapproval of homosexuality was not even resisted—it was unthinkable. Conservative young people found it impossible to voice straightforward dissent or to question the new moral consensus. To stand against the tide of acceptance was to be bigoted, ignorant, unfeeling, hateful.
Those of us who have run the liberal academic gauntlet knew, in 2013, what Scalia meant in Windsor. We understood what it meant to be labeled hostes humani generis. It meant to be deprived of the right to voice your opinion in the public square; to be excluded on principle from the main stream of civil discourse. To be told that your moral universe was anathema to the political foundations of a free society.
Antonin Scalia was a hero to me, as he was to thousands, perhaps millions of conservative Americans. He was brilliant. He was morally engaged. His prose sparkled. He was the great champion of the Right, and he could not be silenced or voted out, no matter how much the press despised him. While his enemies pushed relentlessly to have their views enshrined as fundamental principles of free society, Scalia fought to keep the moral question open for debate, to maintain the possibility of reasonable dissent, because he believed that in a fair fight we could still prevail. He was the mighty rearguard in our long and slow defeat.
The passing of Antonin Scalia is the passing of a great figure in American political life—a true jurist of the sort rarely seen in recent decades. For those of us on the Right, the death of this great man is devastating. In the past forty years the Supreme Court has been the site of so many crucial revisions of the fundamental law of our government. Who can say how his successor will affect the balance of power in this country, or for how long? Without him, or someone like him, we can guess what's to come. More revision, more exclusion, more decay.
After Windsor, “hostes humani generis” became a badge of honor among my friends. We embraced it. We are enemies of the present order. We are citizens of a heavenly city, whose laws we revere, and whose order we obey. To be judged a kind of pirate by this generation is, ultimately, a hilarious sort of blessing. Christ tells us to rejoice in our exclusion. We should rejoice, then, as we pray:
Requiem aeternam dona ei, Domine,
et lux perpetua luceat ei.
Requiescat in pace. Amen.
Elliot Milco is an editorial assistant at First Things.