Posted on 03/15/2006 9:51:35 PM PST by NormsRevenge
BOSTON - Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.
"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.
The 70-year-old justice said the public, through elected legislatures — not the courts — should decide watershed questions such as the legality of abortion.
Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.
He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.
"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.
Scalia has made similar, if less strident, comments during past public appearances.
The jurist, well-known as a strict constructionist in his interpretation of the Constitution, opened his remarks by saying, "I brought three speeches, and I decided to give the most provocative one, because this seems to be too happy a crowd."
As it was in the days of Noah....
Respectfully, Scalia is exactly wrong.
There are some rights enshrined in the Constitution that are beyond the reach of the majoritarian process. Any laws that infringe upon these rights are a nullity, and cannot be enforced, even if those laws were passed by a resounding majority.
"You lost the vote, so too bad" is entirely inconsistent with the Bill of Rights.
Very well put.
Thanks.
Careful jumping to conclusions. You might get hurt. The only time I have seen the inside of a law school was as a guest, twice as a guest lecturer.
AND while doing so, you ignore my, koff koff, brilliant demolishing of your argument?
No wonder you lectured at a law school: They don't have anything to teach you.
You wanna deal with my reponse to your questionable opinion and bogus, straw man argument about the need for lawyers among the Supremes or do you want to just continue to jump to conclusions, while characterizing me as doing so?
What about polygamy, adultery, prostitution? If what consenting adults do behind closed doors is a fundamental right, then you could not discriminate or criminalize any of those activities.
Using your homosexual analysis, you could not pass laws against drug use.
How do you allow for the criminalization of polygamy or prostitution or the prohibition of homosexual or insestuous marriage under your analysis?
I don't see that it is possible. If you cannot constitutionally discriminate against people who practice one form of adult consensual sexual deviation because it violates the equal protection clause, then you cannot discriminate against any other group on the basis of their peculiar sexual deviation.
This is only a semantic difference. The Courts can only refuse to enforce laws, or order laws not to be enforced. They cannot confer with the legislature. It's rooted in the case or contraversey Constitutional requirement - the Court has to have a live case in hand, and it must rule specifically on that issue. It cannot make hypothetical or advisory suggestions to the Legislature (or Executive).
Isn't Scalia right in making the point that if people look to the courts to decide matters of policy the judiciary ceases to function as it was originally intended under the constitution.
Theoretically, yes. Practically, however, Constitutional questions often have very broad policy implications, so this distinction is unworkable.
wouldn't he be accurate in asserting that his branch is not qualified (not elected &etc.) to decide such issues,
Whether or not they are elected is irrelevant to their role in deciding cases or contraversies. Recall that Senators were never elected until the early 1900's - was the Senate then unqualified? The question is not whether or not the branch is democratic - the sole question is whether the Court has a live case or contraversy arising under Federal law or the Constitution. If so, then the Court has the duty to rule, regardless of whether or not the vox populi has spoken through the Legislature.
And just what the hell does that mean?
Leaving aside the question of whether or not this is true, this most certainly not is what the Colorado anti-gay statute did. That statute, rather, singled out one group performing a completely legal activity, and said "Hey, you have no anti-discrimination rights at all." Well, under the Constitution, that violates the Equal Protection clause.
Now, as regards polygamy, adultery, and prostitution, well polygamy is easiest. The State still defines marriage, and as long as marriage is not discriminatory (e.g. the old anti-miscegenation statutes), then marriage is okay. Adultery laws are impossible to enforce, would be bad public policy, and would require such an invasion of privacy that it would undoubtedly be unconstitutional to enforce. Prostitution, even when legalized, tends not to be an arms-length transaction between equals - a lot of the girls are coerced into it by their pimps.
If you cannot constitutionally discriminate against people who practice one form of adult consensual sexual deviation because it violates the equal protection clause, then you cannot discriminate against any other group on the basis of their peculiar sexual deviation.
You cannot constitutionally discriminate against people who practice any legal form of adult consensual sexual deviation.
It means that your words can be construed to be supportive of homosexuality.
Your youth prevents you from seeing that it was just a few years ago that homosexuality and bestiality were viewed in the same light. That was the culture in which I was raised. Assuming that you're about 20 years old, it was the culture of just a decade before your birth.
And suddenly it became 'misguided' or 'homophobic.' We have lived through that transition.
Were we wrong? I don't think so. There is no fundamental difference between bestiality and homosexuality. It is a rejection of the natural use for an unnatural one, per Romans 1 & 2.
There is nothing about consenting adults that really changes the nature of the homosexual act. It kills people at an extremely early age, it spreads disease, and it threatens the infection of the population. Legislatures are well within their purview to control such practice to promote the general welfare.
One cannot make "right" extend to that which would have negative impact on the community at large.
Gotta love Nino.
Depends on what you mean by "supportive." Personally, I find it icky. Theologically, I know it is sinful, but no more so than indifference to the poor. Practically, I realize that trying to regulate this kind of behavior will simply lead to driving it underground - and create huge potentials for blackmail. At the end of the day, unless you are me, my friends, or in my church, what you do with consenting adults on your own time is none of my business.
There is no fundamental difference between bestiality and homosexuality. It is a rejection of the natural use for an unnatural one, per Romans 1 & 2.
Matter of degrees. Recall that extramarital sexuality in Romans 1 also was a rejection of the "natural" for an "unnatural."
There is nothing about consenting adults that really changes the nature of the homosexual act. It kills people at an extremely early age, it spreads disease, and it threatens the infection of the population. Legislatures are well within their purview to control such practice to promote the general welfare.
I disagree. Extramarital heterosexual sex can kill people at an early age, it can spread disease, and threatens the infection of the population too. As a retired chaplain, you had to have seen this.
One cannot make "right" extend to that which would have negative impact on the community at large.
Sure you can. If I want to go buy a bottle of booze, and drink myself till I'm blasted, who's gonna stop me? Prohibition never works.
Baloney. The statue simply placed homosexuality in the same boat as any other sexual deviation. Prostitutes and polygamists have no right to claim that their behavior gives them an anti-discrimination status.
There are a lot of perfectly legal activities that do not lend themselves to anti-discrimination protection. By your logic, transvestites should be allowed to dress up like two bit hookers and parade themselves around the workplace. Dress codes should be banned. Adultery should be a protected status. Churches should be required to hire transvestites, and homosexuals and adulterers for non-ministry positions (and someday for ministerial posititions -- if they want to keep their 501(3)(c) status).
If you cannot see the slippery cliff that you are leaping from, then your legal education has trumped your common sense and your theological education.
California is about to remove all references to mothers and fathers in textbooks and replacing them with terms like progenitors. Is this the future you envision for your posterity? It is the one you are advocating for.
If you don't know, then I can't help you.
You are aware that the slippery slope is a logical fallacy? It's an unwarranted extrapolation. Homosexuality is legal. Prostitution and polygamy are not - so anti-discrimination claims cannot possibly apply to them.
Baloney. We are not talking about skin color, we are talking about behavior.
What about transvetitism, or adultery or bestiality (which is actually legal in most states-- as long as you don't harm the animal)?
Can you discriminate based on those legal statuses?
Should churches (which enjoy 501(c)(3) tax status) be able to discriminate against homosexuals, adulterers, transvestites or atheists in non-ministerial positions, like janitors or gardeners or boy scout leaders? Huh?
And why should a church which enjoys a special tax status be allowed to prevent homosexuals or transvestites or transsexuals or dog lovers from becoming a part of the paid ministry? Isn't that discrminination? Doesn't the 501(c)(3) status require that these organizations comply with anti-discrimination laws that apply to everyone else? Isn't it a violation of equal protection to give religious ministries a pass when it comes to invidious discrimination?
You don't believe there is a slippery slope? You obviously haven't lived long enough to watch it happen. xzins and I have.
As it was in the days of Noah.....
Figure it out.
And here is the dilemma, Jude. We can debate this until we're blue in the face. I can pull out the stats that show a 20-30 year difference in life expectancy for homosexuals.
Then we can get 9 of us -- you, me, p-marlowe, blue-duncan, congressman billybob, connectthedots, buggman, corin stormhands, and orthodox presbyterian -- in a room with our opinions and let us vote on the policy of the entire flippin' nation. We can toss back and forth whether this is a right or not.
But, the truth is that this is not a question for 9 people to decide. It's an issue of policy, morality, and opinion. Even the notion that it comes under the constitution is simply an opinion. There is nothing one can point to and say, "Here, SEE. It's right here in the US Constitution." You can't do that, because it isn't there.
And that's why 9 black-robed oligarchs shouldn't run the nation with their parochial, even if legal, opinions.
They aren't elected, and there is an elected body that debates these things. This is a democratic republic.
I think if a candidate pointed out that his opponent was a lawyer and he was not, it would garner a high % of sympathy and interest. Of course, this does not apply if both parties are running lawyers.
And I can pull out the stats that show a 20-30 year difference in life expectancy for people who weighed 275 lbs. Should the government have forcefully put me on a diet when I peaked at that point? (Now down to 194 lbs - but because I wanted to. It sucks having to buy an entirely new wardrobe on a student's income.) Some things are only my own business.
There is nothing one can point to and say, "Here, SEE. It's right here in the US Constitution." You can't do that, because it isn't there.
Sure I can. Equal Protectuon under the laws. What that means requires interpretation, and that's why there is a Supreme Court.
And that's why 9 black-robed oligarchs shouldn't run the nation with their parochial, even if legal, opinions. They aren't elected, and there is an elected body that debates these things. This is a democratic republic.
We're just not going to agree. This is not a democratic republic; it's a Constitutional Republic. There are some things that are beyond the reach of even an elected legislature, because they too can very easily trample the rights of individuals or minorities. This appeal to majoritarianism is a silly argument.
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