View 357 April 11 - 17, 2005 (original) (raw)
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Saturday, April 16, 2005
This from another conference, on the Scalia opinion:
James here:
What Scalia said was this:
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
http://caselaw.lp.findlaw.com/scripts/
getcase.pl?court=US&vol=000&invol=02-102#dissent1
There are a couple of other good points made by Scalia:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.2
and the point about gay marriage:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17.
Do not believe it.
Emphasis added. I find this a succinct statement of Constitutional principles that seem obvious to me, and are anathema to a large but vocal minority which seems to have control of the judicial system. Rule by judges in defiance of the popular will has the same defects as any other form of rule by elites without consent of the governed, but with the additional defect that there is no time-honored sanction to generate respect. One may follow a king or a lord from prescriptive reasons: my father swore fealty to your father, and I to you, and Sire, I obey though I think you be wrong. One does not say such things to judges.
"Rule of law" is a principle that when said to "law" neither historical nor enacted by the people diminishes respect for law. The abortion matter is a good illustration: had this been left to legislation it would in fact be law, but the discovery of rights not suspected for 200 years has not persuaded those who disagree that "rights of choice" are in fact actual law. Had the matter been left to states and legislatures it would be long settled now, as divorce, once rare (some of us can remember when going to Reno for 6 weeks was routine for those wealthy enough who lived in states that didn't have divorce) is now obtainable almost everywhere.
While we are raising profound issues,there's autism, and deafness, and...