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Scalia: What a massive disruption of the social order this ruling entails.
US Supreme Court ^ | June 26, 2003 | nwrep

Posted on 06/26/2003 7:37:38 PM PDT by nwrep

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:


Excerpted from his dissent in today's sodomy ruling:

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.

TOPICS: Activism/Chapters; Culture/Society; Front Page News; Government; News/Current Events; US: Oregon; US: Texas; US: Utah; US: Washington
KEYWORDS: constitution; constitutionlist; court; homosexualagenda; lawrence; lawrencevstexas; lawrencevtexas; paleolist; reverseracism; sasu; scalia; scotus; scotuslist; sodomy; supreme
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To: nwrep
I'm convince that the Supreme Court has lost its moral authority to interpret the Constitution of the United States, not just from this decision, but from many recently where it seems the justices decide what answer they wish to give then look to the law and the Constitution only as justification for the already-decided opinion, rather than what justices *should* do which is to look first at the Constitution and the law and see what it directs.

IOW, the Court appears to be ack-bassword in the decision-making process and it explains why so many of their decisions appear to be political compromises rather than judicial interpretation.

It's truly a shame that the Court seems to embrace the "living Constitution" concept liberals have championed whether they care to admit it or not.

21 posted on 06/26/2003 7:56:21 PM PDT by Tall_Texan (Why aren't we checking the DNC for WMDs?)
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To: RealEstateEntrepreneur
I don't know maybe I'm nutty, but THAT seems to be Scalia's argument.

People's property does not only include their car and house. It's also their own persons. They have a right to do what they will with them, with the exception of violating the same right of others.

Buggery does not violate my rights. Therefore it is not under the rightful jurisidiction of any government.

As for whether the state has infinite rights to make laws, just because it is partially sovereign...NOPE. Any law that does not conform to the supreme law of the land is invalid. Hello, if they made Jews wear the Star of David in Massachusetts, that doesn't make it a valid constitutional law.

If Scalia really is saying what it seems he is, he apparently has less understanding of the original intent of the Framers than I do. That's just sad.
22 posted on 06/26/2003 7:56:22 PM PDT by Skywalk
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To: tomahawk
He has never read the freakin constitution, or he would have said,"We have no authority to rule on this.."

Find legal evidence to the contrary. I dare you.

I am sick to G_D of these frikkin' hypocrites.

IT IS THE LAW, not a polite suggestion.

23 posted on 06/26/2003 7:58:46 PM PDT by patton (I wish we could all look at the evil of abortion with the pure, honest heart of a child.)
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To: Chancellor Palpatine
Find out who the law clerks of these justices are. I will bet dollars to donuts the Justice's law clerks wrote the majority opinion(s). (would not be surprised if the writing clerk was a homosexual. Now THERE is a news scandal story. Does any news story have the fortitute to delve into that possiblity?)
24 posted on 06/26/2003 7:58:51 PM PDT by longtermmemmory
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To: nwrep
SCOTUS rulings are so far beyond our Constitution limits on federal power that 5 justices are no longer in "good behavior". These rulings are just that because our representative republic would never expand federal powers like a cancer, colon cancer.

Congress must reign in the jurisdiction of SCOTUS to only matters of Constitutional law within the limits of our Constitution.

Our Constitution means what it says, not what some blackrobes purport society should be.
25 posted on 06/26/2003 8:00:15 PM PDT by SevenDaysInMay (Federal judges and justices serve for periods of good behavior, not life. Article III sec. 1)
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To: longtermmemmory
The judiciary is rife with homosexuals. The judge in my divorce was gay, there is even a gay judges association. What about that Souter guy?
26 posted on 06/26/2003 8:03:09 PM PDT by Rodsomnia
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To: nwrep
I've been what you call a "lurker" for a long time. But today I'm angry. VERY ANGRY! So I signed up so I can vent.

In it's decision today, the supreme court has, emphatically and unequivocally, said that the the moral perspective of bible-believing Christians is illegitimate for the making of law in the United States. In other words, MY VOTE DOESN'T COUNT!!!

I've been disenfranchised!

27 posted on 06/26/2003 8:03:14 PM PDT by disenfranchised
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To: Skywalk
People are either sovereign over their bodies or they are not.

They're not! Never have been. The state passes all sort of laws to outlaw many things that we do with our bodies, prostitution, suicide, drug use, etc.

28 posted on 06/26/2003 8:05:23 PM PDT by Sci Fi Guy
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To: nwrep
Abortion on demand and sodomy is OK.

Things sure have changed since I grew up in the 1950s.
29 posted on 06/26/2003 8:07:43 PM PDT by buffyt (FREEPING IS SERIOUS FUN! BEWARE THE ADDICTION! (There is no known cure))
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To: Skywalk
If Scalia really is saying what it seems he is, he apparently has less understanding of the original intent of the Framers than I do. That's just sad.

Yeah, the Framers were real big on buggery. That's why they included it in the Bill of Rights.

30 posted on 06/26/2003 8:12:41 PM PDT by Patangeles
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To: Sci Fi Guy
organ selling....
31 posted on 06/26/2003 8:13:27 PM PDT by longtermmemmory
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To: Patangeles
A tangent: A lawyer was telling the woman who wanted to wear her 1 inch cross necklac to get a job someplace other than with the school system which prohibited non-pc jewelry. Why didn't these same liberals tell the homosexuals to move to a pro-soddomy state like vermont? hypocracy.
32 posted on 06/26/2003 8:15:53 PM PDT by longtermmemmory
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To: Skywalk
" Many of his decisions would have been abhorrent to the Framers"

If the Framers were in favor of allowing unnatural relations, how is it that none of them ever said anything against the anti-sodomy laws of their day? Obviously, it's today's SCOTUS majority decision that would have been abhorrent to the Framers.

33 posted on 06/26/2003 8:16:58 PM PDT by cookcounty
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To: Sci Fi Guy
So? That's my point isn't it?

Didn't it take a Constitutional AMENDMENT to bring about the Prohibition?

34 posted on 06/26/2003 8:24:51 PM PDT by Skywalk
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To: nwrep
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.
No more watching COPS on Saturday night when they sting prostitutes, or drug deals. Claim "consenting adults" and maybe you can get away with any crime!! Imagine 2 guys masturbating each other outside the school! They are in their car & are consenting adults. You can't touch this. Don't call the police.
35 posted on 06/26/2003 8:27:00 PM PDT by jrushing
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To: cookcounty
That may or may not be true.

That does not mean that Scalia's OTHER decisions relating to law enforcement would not be abhorrent to them. I was very clear about what decisions I was talking about.

And yes, they would have found THOSE decisions abhorrent(at least most of them.)

36 posted on 06/26/2003 8:28:33 PM PDT by Skywalk
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To: Patangeles
Are you idiotic enough to think that the BoR is a "grant" of your rights?

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.

What a moronic argument.
37 posted on 06/26/2003 8:29:23 PM PDT by Skywalk
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To: Sci Fi Guy
The state passes all sort of laws to outlaw many things that we do with our bodies, prostitution, suicide, drug use, etc.
All of that has been done away with! All It takes is consenting adults so said the SCOTUS.
38 posted on 06/26/2003 8:30:13 PM PDT by jrushing
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To: Skywalk
He also seems to make the argument that if a bunch of politicans get together and make a law that deprives you of liberty(in this case sodomy) that this does not violate due process.

Constitutionally, his argument is sound. The determination about the sodomy law is, properly speaking, not for the federal government to make or to impose. As with abortion, it is one that is properly determined in the legislatures and courts of the respective states. That typically means that some states will decide one way and some the other. To date, Texas' legislature has stood by the existing law and its courts have upheld it. That is not so in some other states, as is their respective right to determine. But by ruling as the court did in this case, they assumed the power of determining that particular policy into the federal government. For that reason, if nothing else, the ruling is an atrocity.

Man, this guy loves the State.

For opposing the assumption of another power by the federal government? Your reasoning is bizarre.

39 posted on 06/26/2003 8:30:21 PM PDT by GOPcapitalist
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To: nwrep
To ALL of you who are pontificating that the state has NO RIGHT to control DEVIANT behavior....

Remember this: What is the MAIN means of AIDS transfer in the Western World? Homosexuality.

If anyone in this country had any guts back even before Reagan (including Reagan) the AIDS epidemic could have been halted in its tracks in the Western World (RACIST!!)

It could have been halted in Africa also by the same means. But there is someone (plural) who does NOT wish to see AIDS halted.

AIDS/SARS/etc. etc being the antibiotic resistant pneumonias and other virus that are prolific in the HOMOSEXUAL communities and parts of Africa and the Caribe.

This SC decision is onl the start of the deviancy epidemic that WILL include pedophilia, bestiality, and the rest of the ANTI-HUMAN practices of the (The only word that describes it accurately) EVIL!
40 posted on 06/26/2003 8:32:22 PM PDT by steplock (
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