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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.

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