Scalia: What a massive disruption of the social order this ruling entails.

Scalia: What a massive disruption of the social order ... this ruling entails.

Read below one of the most brilliant defenses of traditional values, morality and conventions that have governed civilization for the past 5000 years. Judge Scalia is a national treasure:

I begin with the Court ’s surprising readiness to recon- sider a decision rendered a mere 17 years ago in Bowers v. Hardwick .I do not myself believe in rigid adherence to stare decisis in constitutional cases;but I do believe that we should be consistent rather than manipulative in invoking the doctrine.Today ’s opinions in support of reversal do not bother to distinguish —or indeed,even bother to mention —the paean to stare decisis coauthored by three Members of today ’s majority in Planned Parent- hood v.Casey.

There,when stare decisis meant preserva- tion of judicially invented abortion rights,the widespread criticism of Roe was strong reason to reaffirm it: “Where,in the performance of its judicial duties,the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe [,] ....its decision has a dimension that the resolu- tion of the normal case does not carry....[T ]o over- rule under fire in the absence of the most compelling reason ...would subvert the Court ’s legitimacy be- yond any serious question.”505 U.S.,at 866 –867.

Today ’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive ” decision))if:(1)its foundations have been “eroded ” by subsequent decisions,ante ,at 15;(2)it has been subject to “substantial and continuing ” criticism,,ibid.;and (3)it has not induced “individual or societal reliance ” that counsels against overturning,ante ,at 16.

The problem is that Roe itself —which today ’s majority surely has no disposition to overrule —satisfies these conditions to at least the same degree as Bowers.

I do not quarrel with the Court ’s claim that Romer v. Evans ,517 U.S.620 (1996),“eroded ”the “foundations ”of Bowers ’ rational--basis holding. See Romer ,supra ,at 640 –643 (SCALIA,J.,dissenting).) But Roe and Casey have been equally “eroded ”by Washington v.Glucksberg ,521 U.S.702,721 (1997),which held that only fundamental rights which are “‘deeply rooted in this Nation ’s history and tradition ’”qualify for anything other than rational basis scrutiny under the doctrine of “substantive due process.”Roe and Casey ,of course,subjected the restric- tion of abortion to heightened scrutiny without even at- tempting to establish that the freedom to abort was rooted in this Nation ’s tradition.

We ourselves relied extensively on Bowers when we concluded,in Barnes v.Glen Theatre, Inc.,501 U.S.560,569 (1991),that Indiana ’s public inde- cency statute furthered “a substantial government interest in protecting order and morality,”ibid.,(plurality opinion); see also id.,at 575 (SCALIA,J.,concurring in judgment). 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.

The impossibility of distinguish- ing homosexuality from other traditional “morals ” offenses is precisely why Bowers rejected the rational-basis chal- lenge.“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.

What a massive disruption of the current social order, therefore,the overruling of Bowers entails.Not so the overruling of Roe ,which would simply have restored the regime that existed for centuries before 1973,in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State.Casey ,however, chose to base its stare decisis determination on a different “sort ” of reliance..“[P ]eople,”it said,“have organized intimate relationships and made choices that define their views of themselves and their places in society,in reliance on the availability of abortion in the event that contracep- tion should fail.”505 U.S.,at 856.

This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful.It would not;it would merely have permitted the States to do so.Many States would unquestionably have declined to prohibit abortion,and others would not have prohibited it within six months (after which the most significant reliance interests would have expired).

Even for persons in States other than these,the choice would not have been between abortion and childbirth,but between abortion nearby and abortion in a neighboring State.

To tell the truth,it does not surprise me,and should surprise no one,that the Court has chosen today to revise the standards of stare decisis set forth in Casey .It has thereby exposed Casey ’s extraordinary deference to prece- dent for the result-oriented expedient that it is.

Texas Penal Code Ann.§21.06(a)(2003)undoubtedly imposes constraints on liberty.So do laws prohibiting prostitution,recreational use of heroin,and,for that mat- ter,working more than 60 hours per week in a bakery. But there is no right to “liberty ”under the Due Process Clause,though today ’s opinion repeatedly makes that claim.Ante ,at 6 (“The liberty protected by the Constitu- tion allows homosexual persons the right to make this choice ”);ante ,at 13 (“‘These matters ...are central to the liberty protected by the Fourteenth Amendment ’”);ante , at 17 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct with- out intervention of the government ”).

The Fourteenth Amendment expressly allows States to deprive their citi- zens of “liberty,”so long as “due process of law ” is provided: “No state shall ...deprive any person of life,liberty, or property,without due process of law .”Amdt.14 (emphasis added).

Our opinions applying the doctrine known as “substan- tive due process ” hold that the Due Process Clause pro- hibits States from infringing fundamental liberty inter- ests,unless the infringement is narrowly tailored to serve a compelling state interest.Washington v.Glucksberg , 521 U.S.,at 721.We have held repeatedly,in cases the Court today does not overrule,that only fundamental rights qualify for this so-called “heightened scrutiny ” protection —that is,rights which are “‘deeply rooted in this Nation ’s history and tradition,’”.

Finally,I turn to petitioners ’equal-protection challenge, which no Member of the Court save JUSTICE O ’CONNOR, ante ,at 1 (opinion concurring in judgment),embraces:On its face §21.06(a)applies equally to all persons.Men and women,heterosexuals and homosexuals,are all subject to its prohibition of deviate sexual intercourse with someone of the same sex.To be sure,§21.06 does distinguish be- tween the sexes insofar as concerns the partner with whom the sexual acts are performed:men can violate the law only with other men,and women only with other women.But this cannot itself be a denial of equal protec-tion,since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The objection is made,however,that the antimiscegena- tion laws invalidated in Loving v.Virginia ,388 U.S.1,8 (1967),similarly were applicable to whites and blacks alike,and only distinguished between the races insofar as the partner was concerned.In Loving ,however,we cor- rectly applied heightened scrutiny,rather than the usual rational-basis review,because the Virginia statute was “designed to maintain White Supremacy.”Id.,at 6,11.A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny,even a facially neutral law that makes no mention of race.See Washington v.Davis , 426 U.S.229,241 –242 (1976).No purpose to discriminate against men or women as a class can be gleaned from the Texas law,so rational-basis review applies.That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society ’s belief that certain forms of sexual behavior are “immoral and unacceptable,”478 U.S.,at 196.This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner — for example,laws against adultery,fornication,and adult incest,and laws refusing to recognize homosexual marriage.

Today ’s opinion is the product of a Court,which is the product of a law-profession culture,that has largely signed on to the so-called homosexual agenda,by which I mean the agenda promoted by some homosexual activists di- rected at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong)excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small)that does not wish to hire as a prospective partner a person who openly engages in homo- sexual conduct.See Romer ,supra ,at 653.

One of the most revealing statements in today ’s opinion is the Court ’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosex- ual persons to discrimination both in the public and in the private spheres.”Ante ,at 14.It is clear from this that the Court has taken sides in the culture war,departing from its role of assuring,as neutral observer,that the demo- cratic rules of engagement are observed.Many Americans do not want persons who openly engage in homosexual conduct as partners in their business,as scoutmasters for their children,as teachers in their children ’s schools,or as boarders in their home.They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.The Court views it as “discrimination ”which it is the function of our judg- ments to deter. So imbued is the Court with the law profession ’s anti-anti-homosexual culture,that it is seem- ingly unaware that the attitudes of that culture are not obviously “mainstream ”;that in most States what the Court calls “discrimination ” against those who engage in homosexual acts is perfectly legal;that proposals to ban such “discrimination ” under Title VII have repeatedly been rejected by Congress.

Let me be clear that I have nothing against homosexu- als,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 crimi- nalize private,consensual homosexual acts.But per- suading one ’s fellow citizens is one thing,and imposing one ’s views in absence of democratic majority will is some- thing 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 “constitu- tional 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.

The matters appropriate for this Court ’s resolution are only three:Texas ’s prohibition of sodomy neither infringes a “fundamental right ” ((which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest,nor denies the equal protection of the laws.I dissent.

I apologize for mistaking you for that FF578 guy.
If you've seen his posts, you'd know what I was talking about.

Hey, how do you remember my old profile page? No really, how the heck do you remember, I barely remember it!

But please, trying to imply that I'm homosexual because of my picture or aspirations(Ok, if I said interior decorator you'd be on point) and hence I defend homosexuality is beyond ridiculous and insulting.

Next you're going to tell me I'm smoking weed and shooting heroin because I'm against the WOD.

BTW, I'm insulted but I thought your dig about my old profile page WAS pretty funny :)

"Well, in the case of your third problem with taxpayers paying for STDs, I would think that the simplest solution is to remove the socalist healthcare system so that you no longer have to pay for the consequences of people's stupid sexual decisions."

"simplest solution?" If you can get this simple solution resolved by next Tuesday, then I'll reconsider my beef. The homosexual organizations (all of them) want me to pay for their sin out of my pocket, then if I complain, they tell me it's about "privacy", and to put up and shut up.

I don't see much difference do you?

I'm thinking the only difference is the tax cuts. Maybe there was a deal struck. As long as the Republicans got their tax cuts, the liberals could continue their agenda, which would mean that all the Reps. cared about was tax cuts. If they care about more than tax cuts, evidently it's the liberal agenda.

it's not right to take the law into one's own hands.

But sometimes when the government does not do right, good people do take action themselves. Rememgber the lady who shot the repeat child-molester in California ?

Our forefathers just wouldn't take much nonsense. It's not that they couldn't have understood the Rainbow (ACK!) Coalition but that they would have understood it too well.

I would never go outside the law and hurt anyone but I do believe The state has a responsibility in this nation to encourage morality and discourage immorality as it historically has.

I do believe that Homosexuality is a capital offense against God and any nation.

Our nation was in the process of healing the unjust treatment of blacks long before the Civil War occurred.

Nevertheless, when you are arguing strict constitutionalism, I don't think you can argue that the decisions you mentioned violated the document.

Today people use the Constitution to defend whatever weirdness they want to practice. It doesn't.

The constitution is a social document. It is moral to the extent it includes the bill of rights and representative government by law.

The Whole body of American law, incuding the constitution is founded to a great extent upon unchanging moral truths taught in the Bible.

The Bible was the most quoted document in early colonial governance and jurisprudence.

Don't fear it; embrace it as light and life.

Good post.

People are saying this opens the doors to all kinds of deviant behavior. Yet no one brought up the fact of that God would treat all overt sexual acts to be deviant. Make all porn illegal and make every sexual act in the bedroom except for the act of missionary sex(and only if you want to have a child!) illegal. That way we can all be happy.... what a joke. People just can't get the difference between what should be law.. and what should be their own moral behavior. Don't dicate what I do in my bedroom. Oh yeah.. don't forget.. masterbation is deviant as well. Ah shucks.. let's give people the death penalty for that.

Morality is objective.

If you can demonstrate the existence of an absolute frame of reference for defining morality, then I will agree with you. If you merely assert belief that morality is objective, then that is just a belief. Other people may have belief in an objective morality that differs from your own, and thus it's your word against theirs until you pony up evidence for your assertion.

I can tell you right now witout even knowing you that if you are male then you are not a monogamous homosexual.

I am not a homosexual, so I can't really say whether or not you are correct. I was not speaking of myself, however, I was speaking of homosexuals in general. That you seem to believe that there is no such thing as a male monogamous homosexual is indicative of either incredible arrogance or exceptional knowledge because it means that you have been able to ascertain the life history of every male homosexual on the planet. For some reason I believe that the former is more accurate than the latter.

Unless you define the term as having only one partner tonight.

And this is just a stupid statement. To assert that every male homosexual has a different sexual partner every night is just abject stupidity and indicative of a complete lack of assocation with reality.

I don't need to justify my arguments because they are correct.

In other words, you assert the infallability of your assertions regarding the existence and nature of an absolute morality as well as your assertion regarding the sexual history of every male homosexual on the planet. I can think of a term for that, but it wouldn't be "correct".

You say segregation is not relevant and question my motivation in doing so, and you are wrong to do that. You state that I operate under an assumption that state power will always result in abuse. This too, is wrong. Instead, I say that the supreme law of the land supercedes the state's rights when the state is overstepping its bounds. PERIOD.

No. Not period. The supreme law of the land can be and often is corruptly enforced in a way that violates liberty. When an unjust federal law that violates liberty conflicts with a state, its supremacy is only valid in technical application, which can be itself invalidly applied. Thus a state could contradict a federal policy in a manner that violated statutory supremacy but was consistent with the law of nature and in such a case nature prevails, at least in right, over statute.

Do you or do you not support lifting all gun laws banning possession or limiting it(by number, cool-off periods, etc) because they are a violation of the 2nd?

On a strictly constitutional measure as intended by the founding fathers, I support a policy lifting all federal laws that infringe upon the right to bear arms. The states, as originally intended (meaning at a time that predates the 14th amendment's clauses to extend federal authority) and governed back in 1787, each had their own bill of rights in their state constitutions (In fact Virginia's original bill of rights predates the Constitution by several years and was the model on which they drafted the federal one). Almost all of the original state constitutions have rights to bear arms in them and, as such, those rights should be enforced just as the federal ones. For those few that do not have them, I will urge them to adopt those clauses but cannot exercise an unjust federal authority to enforce it upon them.

"the reason gays really want their unions blessed by the government ---after demanding the government stay out of their sex lives at first ---is because they want spousal benefits for insurance ---they can marry each other for the AIDS treatments paid for by the health insurance plans."

Dimensio response: "You know, I've seen a lot of discussions on homosexual marriage, different discussions biased on different sides, and I've never heard this argument before. In fact, given that most homosexuals don't have AIDS, I'm not sure how this could be a significant issue."

This is astonishing. HIV rates are vastly higher among homosexuals than heteros, I'm surprised you are not aware of the exrent of this problem----where have you been?

Even if only 80% of the AIDS cases in the US are among homosexuals, considering that supposedlly 10% of the population is homosexual, that means 80% of the disease is among 10% of the population. The simple mathematical facts are that one engaging in homosexual activity is 50 times as likely to be carrying (and spreading) this disease. It is easily the #1 life-and-death health risk for homosexuals. People are scheming and plotting all the time to get better health coverage, do you think homosexuals are morally superior and don't engage in such manipulations?

The "straight people" are supposed to pay for this, while spending $500,000 to raise the future doctors and nurses and taxpayers to take care of this self-absorbed group later on. What I would like to see from homosexuals is a little more willingness to pick up after themselves.

This is astonishing. HIV rates are vastly higher among homosexuals than heteros, I'm surprised you are not aware of the exrent of this problem----where have you been?

Even if only 80% of the AIDS cases in the US are among homosexuals, considering that supposedlly 10% of the population is homosexual, that means 80% of the disease is among 10% of the population.

I did not assert that AIDS or HIV rates amongst homosexuals are equal to or lower than amongst heterosexuals. I asserted that the majority of homosexuals are not infected with HIV/AIDS. Nothing that you have stated here (which is supposition anyway) counters this.

The simple mathematical facts are that one engaging in homosexual activity is 50 times as likely to be carrying (and spreading) this disease.

Wouldn't this depend upon their sexual habits? A male homosexual who sleeps with a different partner every week (even amongst the 'slutty' homosexuals I've met, that's a VERY high figure) would be at significantly higher risk than a lesbian who has only one ten sexual partners during her entire life.

It is easily the #1 life-and-death health risk for homosexuals. People are scheming and plotting all the time to get better health coverage, do you think homosexuals are morally superior and don't engage in such manipulations?

No, but I don't see 'getting free AIDS coverage' as a really big selling point for gay marriage amongst homosexuals. Healthcare is one factor brought up, but it never seems to be any more discussed than others.

All of us who stand for liberty and REDUCING the power of the state(be it federal or state or local) are homos who meet other gay men in parks and insert our penises into each others' anuses.

I always wonder why people in favour of sodomy laws always bring up the most descriptive terms in the discussions. They say that it's because they want to be blunt about "what homosexuals do", evermind that lesbians typically aren't able to do that and that there are even male homosexuals who aren't interested in such sexual activity.

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