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.

"...Surely, then, you'll tell me what tradition Presser, Miller, Plessy v. Ferguson and the Dred Scott case fall under? The evil and tyrannical school of jurisprudence?..."

These cases were resolved through the tradition of courts considering and interpreting the Constitution, its Bill of Rights and Amendments, Common Law precedent and statute as they pertain to the facts of the case. Making up the law on the fly, thereby depriving the rights of the people to govern themselves had nothing to do with them.

As for slavery (in re Dred Scott), it was ended by the ratification of the 13th Amendment by the several states. The Emancipation Proclimation was only tangential and the Supreme Court never dictated it. Slavery was ended by the democratic action of the people.

You seem determined to deprive the people of their right of self governance. You claim that this is in the "spirit" of the Constitution. How on earth have you arrived at that conclusion?

ROFL

Now you claim that it is a matter of self-governance?

Fortunately, blacks were not being exterminated instead of enslaved because if you had your way, such would be a matter of "self-governance."

Sorry, there are certain things that are not up for any government or "majority" to decide, but I thought we all agreed with that here on FR.

I guess not. As long as you got the votes, it's cool.

No revolution, just pressure King George, that'll work. Don't demand that the OBVIOUS be acknowledged(slaves are sovereign beings and not property) but instead let's all vote on it and hope it turns out for the best.

Hey, you go ahead with that view, seems like you can justify anything with that. I'm supposed to not only go along with that view, but not even disagree unless it's done through the courts and "traditional forms of self-governance."

Fantastic.

Sorry, there are certain things that are not up for any government or "majority" to decide, but I thought we all agreed with that here on FR.

I guess not. As long as you got the votes, it's cool.

And this kind of mentallity that is demonstarted time and time again is baffling to me. I continuously hear and see people who claim to be conservatives say and write things like "This contry continues to become a cesspool" or "We keep going further down the path to destruction", but continue to argue for a democracy. It seems that they are oblivious to the fact that if this county is in deed becomming what they say, then in the near future, these "conservatives" will not be "the majority". So instead of leaving people alone to determine what private, peacefull activities they will engage in, these "conservatives" keep insisting "majority rules" when its going to come back and bite them in the arse sooner or later.

What's also depressing is that bright and knowledgeable people will seriously argue that a right does not exist if it doesn't appear in the Bill of Rights. Then no one will answer what the 9th Amendment covers when I ask. Nor do they seem to recall much of what Hamilton and other said about the BoR not being meant to grant ANY government the authority to intrude on certain areas of life.

We had one praising Scalia's dissent in the Griswold case, which was a law prohibiting(or was it merely regulating) the use of contraception between a married man and his wife. And CONSERVATIVES will support these kinds of laws, simply because one group of idiots elects another?

Way to go defenders of liberty! lol

"...Hey, you go ahead with that view, seems like you can justify anything with that. I'm supposed to not only go along with that view, but not even disagree unless it's done through the courts and "traditional forms of self-governance."..."

The Framers were wise, as was Justice Marshall, the first SC Chief Justice. He established the principle of judicial review. That is, that the SCOTUS has the power to overturn laws that are inconsistent with the Constitution, its Amendments and the BoR.

The tradition of judicial review protects the people from the tyranny of a state majority. This is a critical pillar of our freedom and I cherish it.

But, the review power granted to the SCOTUS can easily be abused. Prior to the modern era, it was widely held that the SCOTUS should apply a strict reading of the Constitution when exercising its judicial supremacy power over the states. That is, it should give grave deference to the laws of the states, and it shouldn't go inventing rights that aren't set forth in the Constitution, and then start overturning state law because the laws deprive the citizens of that state of the newly minted right. The modern courts have abandoned this sensible constraint of their potentially dictatorial power. The social costs of this change have been tremendous. Although you may not understand it, the damage to our liberty has been incalculable.

The invention of a privacy right in the Constitution was the most serious breach of the traditional constraint of strict construction. Scalia clearly questions the existence of a constitutionally protected right to privacy, being the strict constructionist that he is. I agree with him. The Founders suffered under no such delusion, nor is it imbedded in the Common Law.

If you want a right of privacy, pass a constitutional amendment. Until such an amendment is passed, you are free to move to a state that does not prohibit your private act of gratification. If no such state exists, you are free to move to another country where it is.

This ability of self governance, the right to property and the freedom of movement is the bedrock of our freedom. The imposition of the high minded opinions of several justices who deem it unnecessary to support their opinions with any kind of compelling legal argument is not freedom, rather tyranny.

For the record, I am with Thomas on the appropriateness of sodomy laws. Indeed, I have great respect even for O'Conner's comments regarding the equal protection issue of whether a sodomy law should apply only to homosexual conduct (although ultimately Scalia's legal argument on this matter is more compelling). I do not advocate sodomy laws. But it is clear to me that the Constitution gives states the right to have them, just as it gives them the right to outlaw prostitution, suicide or drug possession, even when these activities occur in the privacy of one's home.

You may believe that these "victimless" crimes should not be crimes at all. If so, petition your state government to act in that manner. But please, don't use the dictatorial powers of the supreme court to impose your views on the rest of us. Many of us disagree and wish to live in a different type of society. That’s what Federalism is all about.

"...What's also depressing is that bright and knowledgeable people will seriously argue that a right does not exist if it doesn't appear in the Bill of Rights. Then no one will answer what the 9th Amendment covers when I ask. Nor do they seem to recall much of what Hamilton and other said about the BoR not being meant to grant ANY government the authority to intrude on certain areas of life...."

The Ninth Amendment protects the people and the states from the Federal government. In other words, the Federal government can't deny the people and the states of rights that they have. It in no way gives the Supreme Court the power to invent a right and then impose it on the states and the people.

If that power exists, if must be held in the penumbra of some other Amendment.

"...We had one praising Scalia's dissent in the Griswold case, which was a law prohibiting(or was it merely regulating) the use of contraception between a married man and his wife. And CONSERVATIVES will support these kinds of laws, simply because one group of idiots elects another?

Way to go defenders of liberty! lol..."

You seem to be confusing conservatives and libertarians. Conservatives have a profound respect for tradition and are skeptical of those who would have us abandon it. Granted, some are extreme or intemperate in these views. Criticize them appropriately for their extremism. Do not fault them for their respect for tradition.

Libertarians may have respect for tradition (the Lew Rockwell crowd comes to mind), but they value absolute personal freedom to a greater extent. Clearly, you are a libertarian. Fine.

Please do not criticize conservatives for not being libertarians. The two terms are not synonymous.

But the existence of a law is the imposition, though I grant the imposition may be wholly justified and moral(law against murder, for instance.)

Therefore, it's really the laws and those that support them that are imposing on the rest of us. The case is even stronger when one discusses laws against drug possession. There are a host of issues associated with criminalizing possession of a substance, but that's for another day.

The fact is, through demagoguery a couple of these laws were passed and the government worked so hard to propagandize the populace that people commonly believe the law to be just. Anyone who really believe marijuana should be illegal and alcohol legal is an example of this phenomenon.

I do not trust the government as you do.

Of course not. They'd have to admit it covers all private, peaceful activity that does not initiate force or fraud against another and thus violate the equal rights of others.

Many also don't see how the 9th an 10th work together:

Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Clearly, this says that the rights people possess are not just what is stated in the BoR. Of course that true. Jefferson and Hamilton, and others, were afraid people would think that only rights listed in 1-8 were actual rights. Their fears were founded in the regonition of human nature and were correct.

Amendment X.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Some people read this and think its talking about rights. Its not. Its about powers. And as you correctly stated earlier, there are some issues that no level of government can be given the power to make decisions on. People actually have limited "powers" as powers are what are given to government. People retain ALL rights. The power to protect those rights is partially given to government. I say partially because obviously every individual has the right to self-defense.

This is the way I look at it. Righst exist exclusive of government. Governments eitehr choose to recognize the rights, or they choose not to. Regardless of laws or edicts, the rights still exist.

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