The Fool on the Hill

Did you know that if I think it’s morally objectionable for women to work, or drive cars, or leave their homes unaccompanied by a male relative, or wear pants or short skirts or sleeveless shirts; or if I believe it’s immoral to play card games, or dance, or sing, or laugh out loud; I can pass laws prohibiting these behaviors?

According to Antonin Scalia, I can pass such laws, and they are not unconstitutional:

If we cannot have moral feelings against homosexuality, can we have it against murder?” the justice asked rhetorically. “Can we have it against other things?”

The point, in Scalia’s view, is that the government has the right to base laws on moral objections, even if he did acknowledge that murder and gay sex are “moral crimes” of a different magnitude. It is a view that he put forth, with characteristic acerbity, in his dissent to the 2003 case Lawrence v. Texas, in which the Supreme Court for the first time outlawed state anti-sodomy laws. It’s hard to believe that less than 10 years ago a gay man could literally go to jail for having sex, and Scalia’s dissent has aged about as well as one would expect. In his opinion, he warned that the majority’s “homosexual agenda” could invalidate a whole host of laws based on moral traditions:

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.

In defending anti-sodomy laws, which he viewed to be a legitimate expression of the popular will, he also wrote:

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 school, 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 Los Angeles Times provides more of the above quotes, including this:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ . . . Bowers held that this was a legitimate state’ interest. The Court today reaches the opposite conclusion. The Texas statute, it says, ‘furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,’ …The Court embraces instead Justice [John Paul] Stevens’ declaration in his Bowers dissent, that ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ . . . This effectively decrees the end of all morals legislation. “

Obviously, as Pam Spaulding says, Justice Scalia should recuse himself from hearing or ruling on ANY case concerning same-sex marriage or anything having to do with civil rights for gay and lesbian Americans, and just as obviously he won’t. His lack of professionalism in the way he goes around essentially announcing, in every and any public venue he can find, how he’s going to rule in cases he hasn’t even seen or heard yet is just breathtaking.

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Kathy Kattenburg

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  • Bless his little heart.

    Justice Scalia asks whether he can equate on a moral basis homosexuality with murder. Of course he can. He can require that homosexuals all wear pink triangles so they can be better identified, and then, for their safety, they should be held in protective custody. But since they are no better than murderers (maybe even worse), they should be disposed of in as humane a way as possible, in order to protect the rest of the population.

    He seems to spend a lot of time looking back to American court cases to defend his arguments, when he would be much better off analyzing German court decisions from, say, 1933 to 1945.

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