SCALIA'S MORALITY OF PREJUDICE

The Daily Dish - andrewsullivan.com ^ | Thursday, June 26, 2003 | Andrew Sullivan

[Luis Gonzalez]

SCALIA'S MORALITY OF PREJUDICE: Antonin Scalia's dissent in Lawrence vs Texas is, as usual, interesting and not quite as chock-full of animus toward homosexual dignity as in the past. It comes down to two arguments: that an assertion of "morality" is justification enough for any law anywhere, regardless of its rationality; and that a law that covers only same-sex sodomy is not discriminatory toward homosexuals. Both ideas strike me as wrong. On the first count, surely the government does need to provide some kind of reasonable justification for a law expressing "morality," which doesn't just rely on what people have always believed or always assumed. One reason that this law was struck down is because its supporters couldn't come up with an argument that justified persecution of private sexual behavior, apart from the notion that stigmatizing gay sex was somehow good for families. Allowing sodomy for 97 percent of the population, while barring it for 3 percent cannot possibly be defended as a law designed to prevent or deter the immorality of sodomy. It was a law entirely constructed to stigmatize gay people. It had no other conceivable prupose. And when "morality" is simply a rubric under which to persecute a minority, then we don't really have the imposition of morality at all. We have the imposition of a prejudice. At least the Catholic Church makes no distinction between heterosexual sodomy and homosexual sodomy. In fact, I know of no religious or moral tradition which makes the distinction that Texas law made until today. Scalia is not upholding any morality. He's upholding prejudice. As to his notion that the law doesn't single out gays because two straight guys getting it on would be criminalized as well, that's like saying that a law banning Jewish religious services is not anti-Jewish since goyim could not conduct such services either. It's the kind of sophistry you need to deny the obvious, hostile intent of the Texas law.

SCALIA'S INSIGHT: But he's right about one thing. Once you acknowledge the dignity of gays as a social class, once you have conceded that their private sexual and emotional lives cannot be reduced to a single sexual act, once you have made the law equal with respect to the private sex lives of heteros and homos, the logic of same-sex marriage becomes hard to resist:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But preserving the traditional institution of marriage is just a kinder way of describing the State's moral disapproval of same-sex couples.

Of course, that precise moral disapproval of same-sex couples - not sex acts, mind you, but couples - is precisely the "morality" that Scalia purports to uphold. It isn't a reasonable morality, since it allows the "sin" of sodomy for the vast majority of people but denies it only to people who have no non-sodomitic option in their sex lives. It's a system of social stigmatization that has its own circular, prejudiced rationale. But getting rid of that incoherent prejudice does make marriage the obvious next step:

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for pruposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense at neutrality) "when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring"; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected under the Constitution"? Surely not the encouragement of procreation, sinnce the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of the Court.

Precisely. Equality under the law means something. And now, it inescapably means the right to marry - for all citizens and not just those with power.

[longtermmemmory]

Senator Santorum deserves an appology from the homosexuals. He was absolutly correct in his assesment.

same sex marriage is part of this decision in the eyes of homosexuals.

Adult incest is now legal according to this ruling.

[Luis Gonzalez]

Could you point me to any litigation in any State seeking to legalize incest?

The Court addressed only the issue before it...the Texas sodomy law.

[Libloather]

...homosexual dignity...

Isn't that what I'm supposed see during gay-pride parades?

[Luis Gonzalez]

"Isn't that what I'm supposed see during gay-pride parades?"

You watch those?

EWWWWWW!!!

[Torie]

Adult incest is now legal according to this ruling.

And that would be a totally erroneous interpretation. Nice try. The grounds of the decision do not please me, but simply just freaking out and venting with whatever string of words makes a poster feel good, is not really very helpful.

[longtermmemmory]

Homosexual groups are already lining up their same sex marriage cases according to their evening comments.


Re Adult incest: Since sexual behavior by two consenting adults in the bedroom can not be regulated, it only follows that sexual behavior between two consenting adults in the bedroom can not be regulated.

[longtermmemmory]

Homosexual groups are already lining up their same sex marriage cases according to their evening comments.


Re Adult incest: Since sexual behavior by two consenting adults in the bedroom can not be regulated, it only follows that sexual behavior between two consenting adults in the bedroom can not be regulated.

If two consenting adults want to figure out what this Oedepus or Electra complex thing is about, they now have a constitutional privacy right to do so in the privacy of their bedroom.

[Torie]

Sullivan is a bit of a whimp for going for the nuclear option for his passion. He should have preferred to fight it out, and win, in the public square. But the scope of the grounds for this decision are breath-taking. SCOTUS can decide anytime it wants what rights are essential to the liberty to exercise one's fundamental personage. I can see a leftist court delving into the economic and redistributionist realm with this line of thinking. Being broke and unable to afford anything advertised on TV might be deemed a denial of the exercise of fundamental personage. It also denies equal protection, and is probably also cruel and unusual punishment. It probably violates several Constitutional provisions all at once.

[Luis Gonzalez]

How exactly would you "regulate it"?

[Libloather]

You watch those? EWWWWWW!!!

Oh, no. But while channel surfing, I do run across the Howard Stern show, the E channel, the latest Miller commercial, or local coverage of some parade in some city celebrating its so-called diversity.

These days, it's kinda hard to avoid...

[Sabertooth]

But the scope of the grounds for this decision are breath-taking. SCOTUS can decide anytime it wants what rights are essential to the liberty to exercise one's fundamental personage.

By federalizing homosexual behavior in the manner that it has, the Supremes have left us operating without the restraint of States Rights on any behavioral topic which burrs in their saddle.

Horses gone, barn burned. "Breath-taking" is an understatement.

[loudmouths]

The decision in no way a conduit to the legal right to marry. However, the incestuos argument can be applied to this decision. It would have been interesting to have this case revolve around a brother and sister claiming that incestuous laws infringe on their right to privacy. Or more realistically, as case of a niece and uncle.

What would have been the Court's ruling even though states in the past have recognized certain incestuous marriages such as New Jersey back in the 50's and 40's and some did not.

What a day makes when you have had a recent decisions like this one and just a few days eralier you had this one.
http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1055929020255940.xml

Or past decisions that deal with incestuous marriages.

http://www.yu.edu/faculty/stein/familylaw2002/May's_Estate.doc

[Gabz]

Adult incest is now legal according to this ruling.

HUH????????????

[TFMcGuire]

Once you acknowledge the dignity of gays as a social class, once you have conceded that their private sexual and emotional lives cannot be reduced to a single sexual act...

Homosexuality and dignity? Now there's an oxymoron!

Their whole lives are defined around, "Sexual acts."

The last spin down on the spiral to the death of a great nation. As someone has said, first we lose our hatred for the abominable, then we tolerate, then we embrace.

Reminded me last night of a Bible verse:

2Ch 36:16 But they mocked the messengers of God, and despised his words, and misused his prophets, until the wrath of the LORD arose against his people, till there was no remedy.

President Bush, Remember good king Asa who broke down the houses of the sodomites.

May God raise us some men and women who will fight this garbage!

[Gabz]

....they now have a constitutional privacy right to do so in the privacy of their bedroom.

And why do you have a problem with what 2 consenting adults do beind closed doors???????

I will tell you right now - I don't want you anywhere near my house and what my husband and I do in our bedroom.

[Luis Gonzalez]

"Their whole lives are defined around, "Sexual acts."

Not really. We define them by their engaging in a sexual act that we consider to be unnatural, so we define them by their sexuality.