Dealing with Scalia

For a start, putting homosexuality in the same league with "bestiality and murder," as Antonin Scalia does, should be enough to pull him off any court, supreme or not.  Scalia has been giving enough of a hearing by now.  Most Americans who pay attention to him at all believe he's a buffoon at best.  Articulate we give him, followed by a swift kick in his own bestiality.

While few think the justices will legalize gay marriage nationwide, court watchers expect they will strike down the 1996 Defense of Marriage Act (DOMA), which trampled on states’ authority to regulate marriage. By leaving marriage up to the states, the march toward legalization will gradually continue.

This puts Nino in a tough spot. When he stood in the schoolhouse door a decade ago in his dissent in the sodomy case, he wrote: “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.”

Now gay-rights supporters have done just that. If Scalia is to honor his own principle, he’ll vote to strike down DOMA and give his blessing to those states that wish to legalize gay marriage. But don’t count on it.

In writings and oral arguments of late, Scalia has sounded more like a conservative pundit than a jurist ...Dana Milbank, WaPo 

He does have a way of wiggling out of his madness, if only temporarily.  He can fall back on an opinion that goes to the heart of the matter.

Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the 2nd Circuit, a Republican appointee and a conservative, wrote in an opinion striking down DOMA that “the Constitution delegated no authority to the government of the United States on the subject of marriage.” ....Dana Milbank, WaPo

Amen.

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Are we giving Justice Scalia more attention, not to mention a higher position, than he has earned?  Is he, as some believe, not so much a representative of justice as a scared, ignorant old man?

Comments

[Tom Maguire]

If you actually trouble yourself to read Scalia's dissent in 'Lawrence' you will discover that he is objecting to the process, rather than the outcome.

Lawrence v Texas overturned a Texas anti-sodomy law and ignored 'Bowers', a Supreme Court decision a mere 17 years old that had upheld a similar law in Georgia.

Scalia was deeply incensed that the liberal wing of the court was utterly deferential to the importance of precedent and legal stability when hearing challenges to Roe v Wade but was prepared to throw past decisions out the window when it suited their agenda; in this example, gay rights.

Here is a snippet of the Bowers opinion from 1983:

"The law, however, 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. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis."

The notion that laws are routinely based on a notion of morality leads to the comparison to bestiality, adult incest, bigamy, and others. Scalia's critics insist that analogizing two things is equating them, which I would hope they recognize as nonsense.

Now, there is a very interesting tension in our Constitution. The majority can vote laws on the basis of their moral view. OTOH, the constitution protects minority rights.

So what is supposed to happen when a minority view tries to go mainstream? That is where we are now with gay rights, with gay rights advocates claiming protected minority status and opponents saying it has been illegal for centuries and ought to remain so.

Well. In the case of gay rights the tide is pretty clear. I feel sort of bad for the Mormons who had their notions of religious freedom and personal liberty yet were persecuted and run out of town (and the country) for their odd views on bigamy. And I guess the adult incest community has not really found its voice either.