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.

"Two men having sex (and hetrosexual anal sex) spreads disease."

Handshakes spread disease, too. Should the government outlaw handshaking, in the interest of public health?

Oh, and prostitution? Let's see. You can have sex with all the women you want, so long as you don't pay for it. Giving them one penny in return for their services would suddenly introduce a public health threat, right?

I am NOT for the unlimited right of a state to make laws contrary to the spirit and letter of the Constitution. PERIOD.

Nor am I, but acts that achieve an exercise of personal license by way of assuming federal power and policy are similarly egregious. Thomas hit the nail on the head with this one. The Texas law was silly and, by existing, generally was not enforced nor was it hurting anybody (note: it is a little known fact that the two homos involved in this case's prosecution set themselves up to be caught and prosecuted so they could challenge the law in court). But overturning it by way of a federal infringement upon the rights of a state achieves that end by an illegitimate means, thus rendering both acts problematic.

The segregation argument was merely an example of unconstitutional behavior by a state under the cover of "state's rights." When we support such ideas, we lose credibility on REAL state's rights, anti-centralization issues.

I don't recall anybody supporting the idea of segregation in any matter as it relates to this case. You brought that issue up yourself in the last post and still have not demonstrated its relevance.

Homosexuality is not liberty it is bondage.

Further, the widespread practice of sodomy deprives an entire nation of rights by the leavening effect of such perversion on all of society and by ensuring the righteous judgment of God falling upon that nation.

You don't need to explain due process to Scalia. You need to shut up and listen to a man with more schloarship and common sense in his smallest digit than you have in your entire skull.

Also, in localities with legal prostitution(provided there are basic health checks) the disease rate is almost nil.

They have monthly health checks on prostitutes in Mexico --often done by new doctors working their year for the government, some of them have told me the prostitutes are full of diseases ---every month they shoot them up with penicillin and whatever, but as soon as it wears off, they've got all the STDs back.

I'm willing to bet that monogamous heterosexual sex spreads no disease.

Married monogamous, heterosexual sex has been the favored relationship in law - and for a good reason - it is heathful for individuals and for society. Adulterous, and/or deviate sex is not, that is why society has constructed social and legal sanctions against it. Just as society has constructed sanctions against theft, deception, and aggression between individuals.

Sadly, the wisdom of previous generations is lost on the "whatever makes you feel good" generation.

How are you harmed in a transaction of sex for money? and are you similarly harmed(please quantify or qualify harm to YOU) by the act of an old rich man marrying a nubile young gold-digger?
I think that we are arguing about the same thing. Although I dislike prostitution, I have a real problem with the "STATE" arresting men or women for the "crime". But, do you allow streetwalkers in the schoolyard playground? Also, how can you keep them out. They might hand out condoms to elementary students.

Married monogamous, heterosexual sex has been the favored relationship in law - and for a good reason - it is heathful for individuals and for society.

I think we'll see nature begin to take it's course (or God) ---with the number of STD's and also AIDS being spread, with us moving into the post-antibiotic age, lifespans and reproductivity will soon start dropping. They're saying chlamydia infections are an epidemic in this area ---in the high schools and the girls are losing their fertility at a very young age.

Hmm, I think that the practice of having streetwalkers ply their trade in schoolyards would violate property laws against trespass(I assume) but also children are not rational actors that can be entrusted with the responsibility to resist or ignore prostitutes right in their face.

Even though I'm for an end to the WoD, I'd be for confining usage to private property.

Here's where I'm going to be arrogant.

Scalia may or may not be a more intelligent man than I, he definitely knows more about the law than I do.

However, Justice Scalia has demonstrated in the past with his "order above liberty" decisions that his grasp of the spirit of the Constitution is quite limited compared to even little ole me.

Sorry, legislation is NOT due process.

Only a simpleton would argue such.

And the appeal to authority is a common and invalid debating tactic.

Try another one please. I've heard slippery slope today a lot so maybe you could go for false dichotomy or non sequitur.

You libertines have no sense of proportionality.

You cannot understand that immorality spreads STD's. People do not contract veneral disease by handshakes, hugs, or even patting on the back.

They are contracted by sexual intimacy.

Soddom and Gomorrah burned themselves up in their reprobation before God ever judged them with fire.

The moral effects of perversion and other immorality on society are manyfold worse thatn the plagues they gender.

Segregation applies in as much as it applies to all precedent and the limits of state's rights. I never said anyone here was proposing segregation. But previous decisions and societal conflicts are VERY relevant to anything involving federal-state disputes today.

Claim "consenting adults" and maybe you can get away with any crime!! Imagine 2 guys masturbating each other outside the school!

Interesting that you bring this up given that the primary basis for overturning the law was "privacy" concerns. Two guys masturbating in a car in front of a school would hardly be an act committed in "privacy", and certainly wouldn't be analagous to the USSC decision.

Handshakes spread disease, too. Should the government outlaw handshaking, in the interest of public health?

If handshaking was known to be a serious threat to public health, it would be in the interest of society to prohibit the practice, don't you agree? Yes, it would probably be illegal to shake hands.

You can have sex with all the women you want, so long as you don't pay for it.

I think that fornication is generally illegal - not that it is generally enforced.

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