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.

THEY HAVE DECLARED WAR ON US! The Supreme Court has declared war on the people of the United States and their governments (state and federal). The 6 justices supporting the decision have committed a criminal act by violating their constitutional oaths of office in order to engage in a conspiracy to subvert the constitutional order (see the Federal codes for "subversion"). Their reasoning rests on the self-asserted power, unfounded in any prior decision (actually in clear violation of every relevant decision ever made over the history of the USSC's operation), law (passed by Congress or power delegated by the states), or the US constitution (as in "social contract" with the people from whom the power to govern is presumably derived from), to DECREE from the bench that "liberty" and the inalienable right to self-determination and self-government are now superceded by the will of a tyrannical clique in black robes issuing a DIKTAT for unencumbered -- anarchic -- pseudo-liberty in the bedroom. The majority was right on one thing -- morality will be absent in the bedrooms of America -- by decree. By so decreeing they are also asserting, as a matter of policy and law, that the current majority on the USSC is operating WITHOUT MORALITY and without any respect for the rights of the people to govern themselves. If the people have no right to govern themselves on such issues, then the entire scheme of federal law collapses, because the Constitution (the social contract with the American people) is nullified. They have just decreed that they are, in fact, as a matter of constitutional law, lawless!

IT IS TIME CONGRESS STOPPED FUNDING THE FEDERAL JUDICIARY -- REMEMBER, ALL OF THE FEDERAL COURTS, OTHER THAN THE SUPREMES, EXIST AT THE WILL OF THE PEOPLE AND CONGRESS. IT IS ONLY IN THAT FASHION THAT THE REVOLUTIONARY COUP D'ETAT THAT THE LIBERAL FACTION ON THE COURT SEEKS TO IMPOSE ON THE CONGRESS AND THE AMERICAN PEOPLE WILL BE EFFECTIVELY CHECKED. RESIGNATIONS OF THOSE BEHIND THE DECISION SHOULD BE DEMANDED BY THE PRESIDENT!

RIGHT ON!

THEY HAVE DECLARED WAR ON US! The Supreme Court has declared war on the people of the United States and their governments (state and federal). The 6 justices supporting the decision have committed a criminal act by violating their constitutional oaths of office in order to engage in a conspiracy to subvert the constitutional order (see the Federal codes for "subversion"). Their reasoning rests on the self-asserted power, unfounded in any prior decision (actually in clear violation of every relevant decision ever made over the history of the USSC's operation), law (passed by Congress or power delegated by the states), or the US constitution (as in "social contract" with the people from whom the power to govern is presumably derived from), to DECREE from the bench that "liberty" and the inalienable right to self-determination and self-government are now superceded by the will of a tyrannical clique in black robes issuing a DIKTAT for unencumbered -- anarchic -- pseudo-liberty in the bedroom. The majority was right on one thing -- morality will be absent in the bedrooms of America -- by decree. By so decreeing they are also asserting, as a matter of policy and law, that the current majority on the USSC is operating WITHOUT MORALITY and without any respect for the rights of the people to govern themselves. If the people have no right to govern themselves on such issues, then the entire scheme of federal law collapses, because the Constitution (the social contract with the American people) is nullified. They have just decreed that they are, in fact, as a matter of constitutional law, lawless!

IT IS TIME CONGRESS STOPPED FUNDING THE FEDERAL JUDICIARY -- REMEMBER, ALL OF THE FEDERAL COURTS, OTHER THAN THE SUPREMES, EXIST AT THE WILL OF THE PEOPLE AND CONGRESS. IT IS ONLY IN THAT FASHION THAT THE REVOLUTIONARY COUP D'ETAT THAT THE LIBERAL FACTION ON THE COURT SEEKS TO IMPOSE ON THE CONGRESS AND THE AMERICAN PEOPLE WILL BE EFFECTIVELY CHECKED. RESIGNATIONS OF THOSE BEHIND THE DECISION SHOULD BE DEMANDED BY THE PRESIDENT!

You're sooo right. If I truly had the right to do what I want with my body, like the pro-aborts say, I should be able to stand on the corner and chop off my own arm. Everyone around me would have to accept the situation, as it is my decision to do what I want with my body.

Of course, in reality, the cops would be called, I would be hauled off to a mental hospital on a 5150, and everyone would call me crazy. In that case, the "state" would be allowed to decide what I can and can't do with my own body.

It truly amazes me that THAT is the argument the pro-aborts give over and over in rationalizing their "right" to kill their babies. Yet if it was anything OTHER than a fetus, it would NOT be tolerated.

Are you idiotic enough to think that the BoR is a "grant" of your rights?

You mean it's not? :)

They didn't include heterosexual oral sex in their either. Guess there's no right to eat white bread, because it's not in the BoR.

Guess not.

What a moronic argument.

Nice technique. Helps me respect your point of view. NOT!

Look, I actually unfairly snapped at you in that post. Lots of people have been extremely condescending and hostile and I probably lost track of who I was mad at.
So I'm sorry for that.

That said, almost ANYONE on this board will right now tell you that the BoR is not a GRANT, in fact, the entire constitution is supposed to be a LIMIT upon the powers of the State. Many, like Patrick Henry, were fearful of the entire arrangement and some believed that by including a specific BoR, that other rights would be violated by a government hungry to establish power whereever it could via the appearance of legality.

So when someone says "I dont see X listed" they are basically illustrating that many of the Founders were prophetic in their doubts and fears.

"...Man, this guy loves the State...."

Sky: You're almost half right. Your statement would correctly read, "Man, this guy loves the states."

Justice Scalia shows in his opinion an appropriate respect for the right of people, as expressed by the actions of their state legislatures, to pass laws that constrain human behavior. In this case the human behavior that is constrained is homosexual sodomy. But it could as well have been murder, rape, prostitution or drug possession.

You may believe that one should be at liberty to engage in any or all of these things. I might agree with you on some. But the fact is that the people of Texas disagree with you and the Consititution gives them the clear right to do so, even when they impringe on an individual's pursuit of his pleasure.

You correctly see sodomy laws as a deprivation of liberty. Scalia agrees with you. What you fail to understand is that all laws are in effect a deprivation of liberty. On this point, the Bill of Rights says that no state shall deprive men of liberty without due process. None on the majority even accuses the State of Texas of failing to provide due process to criminals prosecuted under these laws. They simply don't like the law, so they held against it: the definition of arbitrary and capricious.

As Scalia states in his dissent, he has nothing against homosexuals. His position is based on legal and Constitutional principles. He is concerned that when the court disregards legal and Constitutional principles it will lose it moorings and act as a dictatorship of elite opinion that will deprive the people of their democratic right of self governance. Clearly, we are not far from there.

The one positive thing that has emerged from this fiasco is that it has cast asunder any pretention that the Supreme Court is obligated to give extreme deference to past court rulings when considering new cases (Stare Decisis). The only thing that matters is the collective opinion of the nine people who happen to be sitting on the court at a given time. If God is willing, this means that the legal travesty known as Roe v. Wade is not long to stand.

"...And is that act any less repugnant than say, a heterosexual orgy? Should we start arresting people for anything they do when agreeing to an act?..."

The question Scalia is addressing is not whether we should start arresting people for engaging in orgies. The question at hand is whether a state has the right to prohibit such behavior legally.

The clear answer is that it does. Indeed, some states have laws prohibiting adultery. Orgies would certainly seem to fall within this category.

But therein lies the difficulty with this issue.

I would alter your statement to say "all laws are infringements upon freedom." I'm probably just being a stickler there but I regard the two as a bit different.

I DO NOT view state law as "due process." If that is the case, then any decision that is made that renders your liberty null is valid so long as it is enacted in the legislature.

I also am at a loss. What rights exactly ARE covered in the 9th? Are there any? can anyone name one? Surely they exist or there'd be no need of a 9th.

Are we to be denied liberty when our behavior does NOT infringe upon the rights of others, simply because it is not explicitly listed in the Bill of Rights? That makes no sense. I believe that is a major concern.

I also don't know how we are protected by simply narrowing government authority to a smaller population pool. The Bill of Rights IS supposed to protect us against ALL levels of government. If 51 percent of California vote for, via elected representatives, making people wear blue jeans this is NOT a valid law--PERIOD. States are limited in what laws they may enact too.

BTW, from what I recall of some of Scalia's other opinions he seems to rarely find against law enforcement, because he is partial to 'law and order' and 'public morality' despite the fact that his decisions have been clearly unconstitutitonal.

Antonin, buddy, pal, due process is applied to an individual for a discrete event(prison time for crime, eminent domain, etc) NOT for permanent deprivation of liberty for an entire class of persons until the law is repealed.

It's about time someone said that.

Man, this guy loves the State.

Yes, he sure does. Its hard to see why people champion him as the pinnacle of conservatism.

"...Maybe watching people get arrested for consensual crimes arouses your fascist impulses, but some of us believe such laws to be ridiculous and against the very spirit of liberty...."

Well, that's sound legal reasoning. Let me translate. I don't like that law in Texas, therefore the Supreme Court should strike it down.

This could apply to any behavior that you like, but the people of some state don't. To put forth this argument is childish.

given that most homosexuals don't have AIDS, I'm not sure how this could be a significant issue.

A pretty high percent are HIV positive and can delay getting AIDS for years if they have very expensive anti-virals and the rest to delay AIDS. Two can get in on one life-insurance policy with "marriage" and spousal benefits and it helps with some of those pre-conditions. Monogamy is not part of the gay lifestyle ---how many of these "marriages" do you believe would actually have any fidelity? Do you honestly believe that they aren't going to use the spousal benefits? Or if there was a clause that the government would recognize gay marriage but wouldn't impose insurance companies to comply with the spousal benefits, do you think the gays would accept it?

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