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.

"...I do not trust the government as you do...."

I have no faith in government. But, I abjure my right to complete freedom in order to live in a society governed by the rule of law and not the tyranny of men.

One of the pillars of our society, ruled by law and not men, is the concept of Federalism. Federalism allows each of the several states to work out on its own the nitty, gritty details of what body of laws makes for a good society.

Some of the states will lean toward a libertarian approach that you seem to prefer. Others will opt for a body of law that deems to guide the moral behavior of its citizens. Still others, like my State of Ohio, will search for something in between.

As a citizen of these UNITED STATES, I can choose which type of laws I wish my behavior to be governed by. That is, if I don't like the laws in the state in which I reside, I can act politically to change them or move to a place in greater harmony with my will.

In your world, I would be obligated to live under a set of laws that the powerful elite believes are good for me. I would have no say, through the power of my vote acting collectively with others who share my views, in the determination of the laws that govern me.

You may call that freedom. I don't.

As a citizen of these UNITED STATES, I can choose which type of laws I wish my behavior to be governed by.

LOL!!! No, you want to choose laws to govern the behavior of OTHERS. People don't propose and pass laws to govern THEIR OWN behavior, because they have already chosen to "behave" in a certain way. The laws are for those who disagree. Just as no one censors speech they agree with.

In your world, I would be obligated to live under a set of laws that the powerful elite believes are good for me.

Uh, no, that's your world. The "powerfull elite" are the ones who make such laws pertaining to sexual behavior, drugs, guns, etc. - you know, the laws that govern private behavior!?

I would have no say, through the power of my vote acting collectively with others who share my views, in the determination of the laws that govern me.

Where do keeo getting this "govern me" idea? You want laws to govern EVERYONE ELSE who disagrees with you. Your view isn't about "self governance", its about the governance of those who see things differently than you. I mean, sheesh, are you going to move to Texas now and start having queer sex? Was the law the only thing stopping you? I hope not, or you suffer fron a severe case of projection.

"...The 10th applies to the States, not the 9th.

The 9th only mentions the people...."

You've made a distinction without a difference. The IXth relates to rights and the Xth to powers. The concept of subsidiarity applies to both.

The two together reinforce the idea that the Federal government has no authority to deprive the people of a freedom that it has, which includes the power to pass laws that you do not like, but which otherwise do not deprive the citizens of said state of any right explicity set forth in the Bill of Rights or were otherwise recognized in the Common Law. (Note to Skywalk: as Scalia aptly demonstrates, no unlimited right to private personal conduct is so recognized).

The Constitution established a variety of ways that the several states could create new a right not recognized in the common law or explicity identified in the Bill of Rights. These include having the legislature pass a law or proposing a constitutional amendment and having it ratified by a super-majority of the states.

The Founders could have, but did not grant the federal courts the authority to invent new rights not expressed in the BoR or commonly granted in the Common Law. It certainly did not intend to permit the federal courts to invent such new rights and then impose them on the several states.

Granted, the language of the IXth and Xth is purposely vague, but the political apparatus established under the Constitution is not. It is a leap too far to suggest that the Founders intended these Amendments as a mechanism to give the federal government a special, extra-political power to establish new rights not recognized in the Common Law.

"...So instead you'd be able to decide by majority vote any issue you damn well pleased, simply because you wish it that way.

Interesting, there are few protections under such an arrangement(besides the ones explicitly listed.)..."

You seem to have a lot of faith in the ability of nine unelected dictators to protect your rights. In a world governed by an unrestrained, tyrannical judiciary and not by law, anything is possible.

What would happen if the courts were to come under the sway of people who don't particularly like people who engage in whatever private conduct you like to engage in. Unrestrained by the obligation to follow the Constitution, the Common Law precedents and State Law, few obstacles would exist before such a tyrannical court if it chose to discover rights that could be dangerous to you. For example, the right of an individual to protect himself physically from an unwanted homosexual advance. (Not suggesting that I know anything about you, just an example).

There is clearly no such right in the Common Law or the Constitution. But in your world, the Supreme Court could dream it up, because a majority of its members think that it is right.

Be careful what you wish for. You might get it.

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

High percentage? I don't doubt that it's disproportionate to the heterosexual population, but how high are you saying? Also, do you consider homosexual males and females all together, or do you take into account that lesbians have a significantly lower infection rate?

Monogamy is not part of the gay lifestyle

Assumes that all homosexuals live in exactly the same way. I've met enough to tell you that this is false. I've met quite a few homosexuals who were non-monogamous (a worrisome amount), but I've also met homosexuals in totally monogamous relationships. Of course, someone can say "Well, they're just lying", which is really presumptious on their part.

how many of these "marriages" do you believe would actually have any fidelity?

I don't know. Do all heterosexual marriages have fidelity?

Do you honestly believe that they aren't going to use the spousal benefits?

Well, I assume that many want said benefits in order to use them.

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?

Probably not, because it would not be an equal arrangement.

Skywalk, the ninth amendment doesn't grant any federally enforceable rights whatsoever.

There was some concern during the debate over the Bill of Rights about subjects that were not addressed. The Bill of Rights was designed to guarantee that the federal government could not restrict our rights, and several rights were specifically listed (free speech, freedom of assembly, etc.). There was worry that the federal government might assume that they could restrict rights not listed, by claiming that they were only banned from restricting those rights actually cited in the Bill of Rights' text.

The ninth amendment was drafted to solve that problem. It says that the enumeration of certain rights does not deny the existence of other rights retained by the people. However, note that the language is negative. It says the government (which meant the federal government, as the Bill of Rights was never intended to apply to the states at all) can't DENY the existence of other rights, whatever they may be. But it in no way grants the federal government the power to determine what those rights are, and to impose them on the states. Those rights are left to the voters and the state governments they elect for hashing out in the political process.

This is why it took constitutional amendments to ban slavery and give women federally guaranteed voting rights. Justice John Marshall couldn't "interpret" the ninth amendment as guaranteeing a right not to be enslaved. Nor could Justice Holmes decades later find a "right of women to vote" in the ninth amendment. They couldn't do that because there is no, as in ZERO, federal judicial power in the ninth amendment vis a vis the states. The whole purpose of the amendment was to keep the federal government, including the courts, out of the states on any matter where the Constitution was silent.

It required the feds to respect, for example, both Wyoming's law granting women the vote, and New York's law denying them the vote. If you didn't like one of those laws, your options were to change the law within the state in question, or get two-thirds of both houses of Congress and three-fourths of the states to amend the Constitution. The suffragettes did both, working state by state, and also working toward the 19th amendment, which eventually passed.

"Liberal" activist judges, however, have taken it upon themselves on abortion, sodomy, and many other issues to simply declare that they "found" a right to do those things hidden somewhere in some vague privacy concept, or whatever, and are using raw judicial power to impose their agenda on the country.

And, by the way, I've seen a few posts claiming that this "privacy rights" stuff can be used to overturn IRS regulations or gun laws. Not a chance in the world of that happening, because the judges only strike down laws they disagree with under this concept. It isn't a principle that's applied across the board. It's the whim of the judges. And the judges who created this "privacy right" are lefties who adore the IRS and love gun control, so "privacy" will never be invoked against them. It will only be invoked against traditional morality since legal sodomy and abortion actually cause government to expand, as I've mentioned elsewhere.

Any new statute prohibiting anal sex would have to apply to different sex couples and same sex couples equally. In addition, it would have to state protection of public health as its legislative purpose. Only then could it escape the shredders of Ginsburg, Souter, Breyer, Stevens and Kennedy.

Sexual Transmission

Of the sexual transfer mechanisms, the highest probability of transfer is clearly that of unprotected anal sex. Anal sex between an HIV positive male and an uninfected partner, either female or male, can result in transmission of the virus once in every three to ten sexual acts (1/3 to 1/10). That rests in sharp contrast to the probability of transfer through unprotected vaginal sex from an HIV positive male to an uninfected female (1/75 to 1/300), or the opposite transmission from an HIV positive female to an uninfected male through unprotected vaginal sex (1/300 to (1/1000).

Oral sex is also a mechanism of transmission, but the small number of verified cases of such transmission, and the fact that oral sex is often accompanied by other forms of sexual activity, make it difficult to estimate a probability. There do exist verified cases of oral sex transmission, both heterosexual and homosexual; the probability is low, but quite real. A recent report indicates that persons with allergies, asthma, eczema, and allergic meningitis are more susceptible to orogenital transfer, presumably because of the excess of lymphocytes responding to allergy-induced inflammations in the mouth and throat.

Anal sex is a more likely mechanism of transmission than vaginal sex, primarily because that part of the body, unlike the vagina, is not evolutionary adapted for the physical activity of sexual intercourse. Simply put, the lower end of the large intestine (rectum) is a thin-walled tube that breaks easily, bleeds when it breaks, and has a major supply of lymphocytes and macrophages (including the CD4 group) waiting to be infected by HIV.

From the perspective of functional anatomy, unprotected anal intercourse is biologically stupid! It is an open invitation to serious damage of the rectum as well as to the easy transfer of any sexually transmitted disease such as gonorrhea, syphilis, herpes, papilloma and Hepatitis B. Hepatitis B (for which there is a vaccine) is more easily transmitted sexually than HIV, and results in the death of some 20%-25% of those who acquire an infection.

http://www.arcmesa.com/pdf/hivfun0100.pdf

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