This evening I watched the movie, “Paragraph 175.” It documents the story of homosexuals, mostly men, during the horrific years of Nazi rule in Germany and occupied France. Pierre Seel, the man whose obituary inspired my first post here and lone Frenchman featured in the multilingual film, tells of the atrocities he witnessed and experienced in the Nazi camp at Schirmeck. After an emotional outburst, he pauses for a moment, seems to recollect himself, and says simply, “I am ashamed for humanity.”
Paragraph 175 was a perfectly legal statute that had been on the German law books since 1871. Although little enforced in the decades prior to the rise of Hitler and Nazism, it became the tool by which thousands of homosexual men were sent to concentration camps or other prisons, without benefit of trial, often simply for “suspicion” of being homosexual.
I couldn’t help think of this in light of what is happening these very days in Washington. The Senate Judiciary Committee seems well on their way to approving the nomination of Judge Samuel Alito as a Supreme Court Justice, replacing retiring Justice Sandra Day O’Connor. These highly covered hearings have certainly helped educate the American public, as even non-lawyers now are familiar with terms like “stare decisis” and should know the meaning of constitutional precedent in legal parlance.
I have beeen struck by the fact, however, that while there is much talk of law during these hearings, there is precious little talk of justice. Justice, one of the four cardinal virtues in western thought, is so significant that it is the very title we give to those who sit on our nation’s highest court. And yet, justice seems to be less on the minds of senators than whether or not Judge Alito might rule in favor of overtuning Roe v. Wade. Yes, Roe is an important case … but isn’t the picture much bigger than that? Isn’t justice what Justices should be concerned with and what potential Justices questioned about, even more than issues like a statute’s contsitutionality, legal precedent, and congressional intent? I’m not a lawyer, but it seems to me that all legal proceedings should result in justice. Thus, it gave me pause when Judge Alito made that statement that, “”Results oriented jurisprudence is never justified” in response to one senator’s question about his judicial philosophy. Isn’t it quite possible that a decision be quite legal, but not necessarily just? Shouldn’t we be just as interested in the result of a court case as we are in the process that gets us there? The Dred Scott decision comes quickly to mind.
How would Samuel Alito have ruled had he been serving on the Court in 1857 when the justices ruled 7-2 that the constitutionally protected “property rights” of southern slaveholders outweighed Dred Scott’s claim to freedom? What would Samuel Alito (or any current Justice for that matter), do when faced with an unjust law? What would he do if faced with a case involving a law like Paragraph 175?