Scalia Ridicules Court Gay Sex Ruling

[adios]

I don't agree with Scalia at all. Andy, I stand corrected about what I stated earlier about Scalia not being included with Helms and Lott. I'm very disappointed with Scalia's position on this. I realize that it's being spun as a constitutional issue about the dividing line between state and federal government sovereignty if you will but IMO it's really about something else. That something else is religous beliefs, intolerance and fear. I just think about people I know and have known that are gay and they are far, far away from criminals.

Scalia Ridicules Court's Gay Sex Ruling (http://news.yahoo.com/fc?tmpl=fc&cid=34&in=us&cat=supreme_court)

Scalia Ridicules Court's Gay Sex Ruling
Thu Oct 23, 9:32 PM ET


By ANNE GEARAN, Associated Press Writer

WASHINGTON - Supreme Court Justice Antonin Scalia (news - web sites) ridiculed his court's recent ruling legalizing gay sex, telling an audience of conservative activists Thursday that the ruling ignores the Constitution in favor of a modern, liberal sensibility.


AP Photo



The ruling, Scalia said, "held to be a constitutional right what had been a criminal offense at the time of the founding and for nearly 200 years thereafter."

Scalia adopted a mocking tone to read from the court's June ruling that struck down state antisodomy laws in Texas and elsewhere.

Scalia wrote a bitter dissent in the gay sex case that was longer than the ruling itself.

On Thursday, Scalia said judges, including his colleagues on the Supreme Court, throw over the original meaning of the Constitution when it suits them.

"Most of today's experts on the Constitution think the document written in Philadelphia in 1787 was simply an early attempt at the construction of what is called a liberal political order," Scalia told a gathering of the Intercollegiate Studies Institute.

"All that the person interpreting or applying that document has to do is to read up on the latest academic understanding of liberal political theory and interpolate these constitutional understandings into the constitutional text."

Scalia is a hero of conservatives who favor a strict adherence to the actual text of the Constitution.

The 50-year-old Intercollegiate Studies Institute is a private conservative education organization that sponsors lectures and conferences and scholarships. The group says its mission is to, "enhance the rising generation's knowledge of our nation's founding principles — limited government, individual liberty, personal responsibility, free enterprise (news - web sites) and Judeo-Christian moral standards."

ISI draws much of its funding from conservative foundations, including three controlled by or associated with billionaire philanthropist Richard Mellon Scaife, a vehement critic of former President Clinton (news - web sites).

Scalia spoke after standing with some 800 others to recite the Pledge of Allegiance.

The Supreme Court announced last week that it will hear a case testing the constitutionality of the current version of the pledge as it is recited in public schools and that Scalia will not take part.

Scalia apparently sidelined himself because of remarks he made earlier this year critical of a lower court ruling in the case. The San Francisco-based 9th U.S. Circuit Court of Appeals (news - web sites) had found the pledge was unconstitutional in public school classroom because of the phrase, "one nation, under God."

The Supreme Court could decide to strip the words "under God" from the patriotic oath or rule that the mention of God does not violate the notion of separation of church and state.

[Cyrus]

"The 50-year-old Intercollegiate Studies Institute's mission is to enhance the rising generation's knowledge of ... limited government, individual liberty, personal responsibility, free enterprise and Judeo-Christian moral standards."

Kinda gives the game away that last 'un.

[MMMMMM]

My opinion is that consensual sex, whether heterosexual or homosexual, should not be illegal between consenting adults. However maybe the states which still have those laws on the books should have had referendums to remove those laws rather than the federal government stepping in. The federal government keeps expanding its powers (sigh). If this particular matter is not really in the purview of federal law or the Constitution, perhaps we should be hesitant to take the quickest, easiest way out. The trouble and expense of having state-by-state referendums might be worth it if that preserves Constitutional integrity and prevents further needlesss expansion of federal powers. I rather doubt any states would keep such laws on the books were a referendum to take place, but it would also be interesting (!;-)) to see which states, if any, might vote to keep such laws.

[Kurn, son of Mogh]

The federal government has already ignored the Constitution at least on the subject of marriage.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Muslims are permitted 4 wives. Originally Mormons were permitted multiple wives. Not only are there laws on the books prohibiting polygamy, but Utah was denied statehood until it outlawed the practice.

That sure sounds to me like they're "prohibiting the free exercise thereof."

[elwoodblues]

Not all states have the ability to do referenda.

[elwoodblues]

Let's not forget DOMA (Defense of Marriage Act). Under what theory did Congress have the power to pass that legislation??

I guess we all want small government when we disagree with the government, and large government when we agree...

[Kurn, son of Mogh]

To me the marriage issue is cut and dried. The government has no right to tell a church who it can or cannot marry.

In the case of civil marriage, performed by a government agent, marriage is simply a contract. Thus the government cannot deny the right to contract based upon gender.

I also do not believe that the government has any business re-defining marriage by edict. Thus the solution in civil cases is to create a separately defined civil union in which inhere all the rights and responsibilities of marriage, but just with a simple title. Thus there will no longer exists civil marriage. "Marriage" will be a religios-based institution, "Civil Union" will be government based. Each will look identical to the law.

[Kurn, son of Mogh]

I for one do not believe in legislation by referendum. The US is not a democracy, it is a constitutional federal republic.

[MMMMMM]

Ok, you and elwood raised points I hadn't considered. So substitute state legislation instead of referendum in my post, then, if need be.

[ACPlayer]

I did not follow this issue very closely when the rulings were made.

Was the fed govt involved in making it illegal? I thought is was a supreme court ruling. I assume Ashcroft filed an amicus brief.

[elwoodblues]

I absolutely agree with the underlying ethics of your argument...the problem is that for the government, marriage is not just a contract. You and I, for example, cannot create a contract that says the government should give us xyz benefits in the tax code.

I, like you, think that a ban on same-sex marriage is sex discrimination just as a ban on inter-racial marriages is racially discriminatory.


Faulty Argument: It is not race discrimination because Whites and Blacks (substitute Men and Women) are treated the same; they cannot marry someone of a different race.

Change the perspective slightly, and you get the court's view in the Loving Case (the most appropriately named case in history where the US Supreme Court held that a ban on interracial marriages was unconstitutional)

A = White Man

B = White Woman
C = Black Woman

The state is discriminating against B because B cannot marry A, only C can and the reason B cannot marry A is because of her race.

In the same-sex context
A = Male

B = Woman
C = Man
The state is discriminating against C because B can marry A and C cannot for the sole reason that C is a man.

[Utah]

IMO it's really about something else. That something else is religous beliefs, intolerance and fear

To date has Scalia ever said anything specifically anti-gay in any of his rulings? If so, I have not seen it. Scalia has always been a strict constructionist of the constitution, and barring the terrible Bush/Gore ruling, I can't think of any time he has violated that principle.

Your argument seems not sensical. You yourself say that Scalia dissented because he thought it violated the constitution. You also imply that Scalia didn't use a dislike for homosexualty as an argument for his position. Yet, you are convinced there is something more to the story. Why is that?

[andyfox]

Scalia, to put it bluntly, is full of crap. He interprets the Constitution to suit his political views. He has been at the forefront of expanding the court's power to make laws, which has been the hallmark of the Rehnquist court. He has one of the most brilliant minds of the 18th century.

As we have discussed before, there is no such thing as the original meaning of the Constituion. There is no such thing as strict adherence to the literal meaning of the words of the Constitution in the vast majority of litigable issues.

How does Scalia square the "individual liberty" mission of the ISI with his belief that sodomy should still be a criminal offense because it was in 1787? He's a disgrace.

[J.R.]

How are they prohibiting the free exercise of religion by outlawing polygamy? Should murder be OK for a satanic religion that decress young people must be killed weekly?Whether you buy it or not, the free exercise of religion means belief, not practice. Practice can be burdened to the extent the law is not direced at a specific religious group or practice but is instead a generally applicable law.

Anti-polygamy laws do not prohibit the free exercise of religion, they prevent polygamy. The laws aren't aimed at an established religion and do not prevent the free exercise of religion. To maintain that any law which incindentally burdens an aspect of a religion is consitutionally impermissible is to advocate for anarchy, and to advocate the position that the constitution permits any religious tenet to trumpt the reasons we have law, primarily for social order.

Here's how we got where we are, (excerpt from Reynolds v. U.S. 98 U.S. 145 (1878)), which dealt with the anti-polygamy laws v. 1st amendment and laid out the practice v. belief distinction, as well as the need for social order outweighing untrammeled religous autonomy .


"On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church 'that it was the duty of male members of said church, circumstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.' He also proved 'that he had received permission from the recognized authorities in said church to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church.'
Upon this proof he asked the court to instruct the jury that if they found from the evidence that he 'was married as *162 charged--if he was married-- in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty." This request was refused, and the court did charge 'that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right,--under an inspiration, if you please, that it was right,-- deliberately married a second time, having a first wife living, the want of consciousness of evil intent--the want of understanding on his part that he was committing a crime--did not excuse him; but the law inexorably in such case implies the criminal intent.'
Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.
Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.
The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.
Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining *163 heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration 'a bill establishing provision for teachers of the Christian religion,' postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested 'to signify their opinion respecting the adoption of such a bill at the next session of assembly.'
This brought out a determined opposition. Amongst others, Mr. Madison prepared a 'Memorial and Remonstrance,' which was widely circulated and signed, and in which he demonstrated 'that religion, or the duty we owe the Creator,' was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States.' Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. *164 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three--New Hampshire, New York, and Virginia--included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,--I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.' Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical *165 courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.
By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of *166 the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? *167 To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.
A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.
In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents of a sick child, who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter, while it was said the contrary would have been the result if the child had actually been starved to death by the parents, under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far."

[Kurn, son of Mogh]

You and I, for example, cannot create a contract that says the government should give us xyz benefits in the tax code.

Sure, but the tax code is a different issue. In many cases, getting married puts you at a disadvantage with respect to taxes.

[Kurn, son of Mogh]

Should murder be OK for a satanic religion that decress young people must be killed weekly?

Redacto ad absurdum doesn't merit a response.

[elwoodblues]

Agreed...my point was that marriage isn't an ordinary contract because the existence of the "contract" confers benefits that the government grants (benefits/burdens in the tax code, inheritence rights, etc.)

[adios]

Of course I can't prove it because of the spin but I say it because Scalia is a devout Roman Catholic and homosexuality is taboo to them.
U.S. Bishops Urge Constitutional Amendment to Protect Marriage (http://www.americancatholic.org/News/Homosexuality/default.asp)

U.S. Bishops Urge Constitutional
Amendment to Protect Marriage

The Catholic Church opposes gay marriage and the social acceptance of homosexuality and same-sex relationships, but teaches that homosexual persons deserve respect, justice and pastoral care. The Vatican and Pope John Paul II are speaking out against the growing number of places that recognize same-sex marriages.

[elwoodblues]

My favorite Scalia argument (made at a speech in Minnesota a couple of years back) was that people who are personally against the death penalty should recuse themselves from death penalty cases. I wonder if he would make the same arguments about abortion or those in favor of the death penalty. Probably not...

I think Scalia is very smart and well spoken. I think he's smart enough to know that his "strict construction" and "original intent" arguments are crap.

~elwood

[J.R.]

Read his dissent in Lawrence (http://supct.law.cornell.edu/supct/html/02-102.ZD.html). He makes a valid legal argument, unlike Kennedy, who basically admits the supreme court will follow the public's current opinion of an issue.

While I don't think anti-sodomy laws should be on the books, that does not mean that Kennedy's opinion is well reasoned. Kennedy admits strict scrutiny does not apply because there is no fundamental right to homosexual sexual activity, then applies the rational basis tests and overules the Texas statute, ostensibly and primarily on the grounds that the current social opinion is reflective of a society tolerant of sodomoy.

The Supreme Court basically concluded Texas had no right to outlaw sodomy because it is not a legitmate goal of a state to enact laws that further the moral beliefs of a majority of the memebers of its state. This was not a "libratarian" decision on the grounds that sodomy is a private act and we all have a right to privacy. This was a decision that said a state has no legitamite interest in passing laws that further the moral beleifs of a majority of the members of a state, which was the basis of the Bowers decision.

The only intelligble thing written by those who joined in the majority decision is O'Conner's concurence, which says that bBwers is still good law because the states do have a legitimate interest in furthering morality that justifies passing laws that effect non-fundamental rights. O'Conner would overrule the Texas statute not on an illogical rational review basis, but because it facially violates equal protection, similar to arguments raised in the Romer decision, because the texas staute only prohibits sodomy between people of the same sex. O'Conner's opinion should be the majority, and scalia can't quarrel with O'Conner's well reasoned position.

I'll quote from Scalia's dissent, which basically makes rips Kennedy's opinion.:

"I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

[J.R.]

You mean "Reductio ad absurdum". Why not, there are lots of people who would make this argument if your line of reasoning were to be adopted. This isn't saying pigs can fly or some other nonensensical proposition. Mnay criminal defendants have sought to justify the murders they have committed on religious grounds. This is an argument people make- I did it for religous reasons, and my religion is above your laws.

[Kurn, son of Mogh]

You mean "Reductio ad absurdum".

OK, so my Latin sucks.

Why not, there are lots of people who would make this argument if your line of reasoning were to be adopted.

So what? Murder is already against the law. Having multiple spouses is not the moral equivalent of human sacrifice. That's why the argument is absurd.

[Utah]

Lets say that he dislikes homosexuality, thinks its deviant, or thinks its some sort of mortal sin.

I dont know if thats true or not. But, does it matter? Isn't a judge supposed to keep his personal beliefs in check when interpeting the law? Under your logic, we could never trust any judge because they will follow there personal beliefs instead of the law.

Unless you can point to writings, rulings, speech, etc. that indicate that Scalia's religious beliefs have adversely affected his rulings, you cannot condemn him for being Catholic.

[J.R.]

What government tells a church who they can and can not marry? You can get married in any religion you want, as far as I know. Religion is irrelvant for the purposes of legal marriages, for legal purposes, you have to apply a marriage license from your state.

Marriage in a legal sense is a priviliged legal status bestowed by a state. In a legal sense "marriage" is not merely a contract, its also a legally recognized status. You dichotomy between state recognized marriages and religiously recognized marriages is already in existence. In colorado, I know homosexual people who have been married in a ceremony. They can enter into a contract determining the bounds of their relationship if they choose. But they are not recognized as married by the state, who refuses to issue them a marriage license. Its a matter of recognition, not prohibition.

[Kurn, son of Mogh]

Its a matter of recognition, not prohibition.

I see your point, but I don't think that homosexuals should be discriminated against any more than I think blacks should be. Being a homosexual is no more a "choice" than being black.

[J.R.]

Murder and polygamy are against the law. You argued that polygamy, as a result of the free exercise clause, could not be constitutionally outlawed. I just showed you how the constitution and the legal prohibition of polygamy are legally reconciled, and pointed out an extreme, but concrete case were a similar argument could be made than might not seem so tenable as permitting polygamy. You reponded by saying that the arguments are not the same because of the moral differences between the two proscribed acts.

I agree they are not morally similar, but your and my personal morality is what the consitution sought to protect people from, the tyranny of ideas. I think its absurd to interject one's personal moral classification of different acts into a discussion where you are also ironically advocating the untrammeled free exercise of religion. You can't have some practices be unburdend and others burdened because the unburdened practices are morally better than the burdened ones in your opinion.

All I am saying is that free exercise, like every other constitutional right, as you logiclly know, is not absolutely free, but is subject to some boundry. For the purposes of fairness, conistency, and social order, the boundary on free exercise is the belief/practice distinction. If that shouldn' be the boundary, fine. But we can't arbitraily set the boundaries based on which religious beliefs/practices we deem morally superior or inferior.

Sorry, work sucks, and I had too much coffee. Its almost time to go home, so i'll let this die. Have a good weekend.

[MMMMMM]

"Being a homosexual is no more a "choice" than being black"

Actually this is not 100% true. Although a recent study adds weight to the view that people who are gay may be genetically "hard-wired" that way, some people change over at some time in life primarily for emotional reasons. In other words they may have suffered great emotional anguish in their prior straight relationships and feel like trying something different which (hopefully) might not be so emotionally devastating for them. An example might be a woman who was abused, cheated on, and treated like dirt by two former husbands and also her boyfriend. She might come to view men as less caring than women, and feel like trying something very different. Her emotional scars might be so deep as to make her unwilling to again relate intimately with a man. Therefore she might make a conscious decision that there would be no more men in her life, and that she was going to try the other side. Also, depending on the individual, emotional history might even have the effect of turning that person off somewhat to the opposite sex in general. Not everybody is good at viewing everybody as individual rather than as members of a group, especially emotionally speaking.

As with most things, hard and fast rules are usually not 100% accurate and exceptions do exist.

[adios]

"Unless you can point to writings, rulings, speech, etc. that indicate that Scalia's religious beliefs have adversely affected his rulings, you cannot condemn him for being Catholic."

Who condemned him for being Catholic? All I stated that I believed his religous believes influenced his decision. I condemn him for his decision as a justice but not for being Catholic. I there's quite a difference between the two. Please.

Scalia has stated that he finds the death penalty to be constitutional so perhaps you're right. Then again Scalia appears to be against abortion and would be in favor of overturning Roe v. Wade.

Antonin Scalia on Abortion (http://www.issues2000.org/Court/Antonin_Scalia_Abortion.htm)

Antonin Scalia on Abortion


Leave abortion to states; Court should get out of this area
There is a poignant aspect to today’s opinion [upholding Roe v. Wade]. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court. Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Source: Dissent in PLANNED PARENTHOOD v. CASEY Jun 29, 1992

Roe v. Wade was wrongly decided & should be overturned.
Justice Scalia joined the Court's decision on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:

1. At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: requiring a 24-hour “informed consent” waiting period before the abortion is performed;
2. mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
3. requiring notification of the husband;
4. defining a “medical emergency” that will excuse compliance with the foregoing requirements;
5. imposing reporting requirements on facilities providing abortion services.

Held:
(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned.

1. We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts: The right of the woman to choose to have an abortion before viability.
2. The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
3. The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Dissent:
(Rehnquist, joined in part by White, Scalia, and Thomas)
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.

[Kurn, son of Mogh]

As with most things, hard and fast rules are usually not 100% accurate and exceptions do exist.

I know, but all I can do is go by my own experience. When I hit puberty, I didn't make a conscious choice to be sexually attracted to females. The hormones kicked in and girls just started looking good and having sex with guys was never part of the equation.

Now I'm aware there are "political" lesbians, but I have ahard time believing any guy would consciously choose the gay lifestyle unless (for whatever reason) he was hardwired that way.

[MMMMMM]

Hmmm, point taken...I guess it is easier to imagine "political lesbians" than "political queers" somehow. Hmm, ya, guess I'd agree pretty much.

Also, I have read that a higher percentage of women than men are attracted to both sexes. So switching orientation for emotional reasons might come more naturally for some women than for men, also.

[Boris]

What was terrible about the Bush/Gore ruling? I've never bothered to read it (shame on me) but it seemed like a good idea at the time. I mean, by the time it reached the US supreme court it was pretty obvious that the race was a statistical dead heat and the we needed closure on the issue.

As an aside, it irritates me when Gore supporters complain about the decision. The Democrats, I'm sure, knew about some of the problems that blacks were having trying to vote in Florida before the election actually occured. My guess is that they didn't do anything about it because they were afraid of getting Willie Horton'ed. It wasn't until after the election that they realized Florida was so close and that those people complaining about being unfairly disqualified to vote could actually make a difference in the outcome. The Dems didn't want to risk making a poster child out of someone who was actually a convicted felon.

[Utah]

They should have never taken the case in the first place and their reasoning in the case was not strong. Then, they had the nuts to say that this was a specific ruling and should not be taken as precident in other cases - basically saying, "yeah, we know this ruling is bulls%#$. But, we aren't going to let the Morons in the Florida Supreme Court distort the law because of the national implications". The Wall Street Journal even came out against the ruling.

What irritates me is that the Slimy Democrats like to gloss over the other key facts of the case and they continue to scream to this day, "The election was stolen from us!". Biggest fact - bush got more votes in Florida. The votes were eventually counted and Bush won. Therefore, the Democrats have no argument that the election was stolen. Additionally, the liberal media called the election over before the polls closed. Several independant studies say that this cost the Republicans at least 10,000 votes. There is no proof that blacks or Demcrats were denied the right to vote in Florida ( florida myth (http://www.nationalreview.com/comment/kirsanow200310150822.asp) ). Finally, the Democrats never want to bring up the fact that the disgusting rulings of the Florida supreme court led to the whole mess.

[Chris Alger]

Recall that Scalia was the one who gratuitously raised the "spectre" of gay marriage in his Lawrence dissent. Now, a week after the Bush-endorsed "Marriage Protection Week" (see article (http://www.advocate.com/new_news.asp?ID=10097&sd=10/07/03)) Scalia helps ralley "conservative activists," announcing that Lawrence has put the Constitution out of whack, implying that the Christian right-backed constitutional amendment to ban gay marriage might be just the ticket. The days of high principled conservative justices, like John Harlan, whose idea of impartiality was such that he felt precluded him from even voting for President, are long gone.

[Utah]

The only two things worse than the conservative judges are:

1) The liberal activist judges who have almost no respect for the rule of law
2) Most liberals, who have zero respect for the rule of law.

[Dr Wogga]

he has the balls to say what most heteros believe, but are too paranoid of the P.C. police to say it in public. Long live Justice Scalia - and down with legalized bone smuggling

[adios]

"he has the balls to say what most heteros believe, but are too paranoid of the P.C. police to say it in public."

Here's someone who supports Scalia's dissenting opinion on the Supreme Court case in question who believes his dissent was motivated by his beliefs on homosexuality. Somehow I respect that more than those who are intolerant of gays(like those on the religous right) but state that the decision wasn't about gays rather it was about states rights. Maybe it really was only about states rights but obviously not all that support Scalia's dissent and subsequent ridicule of the majority opinion believe that.

[baggins]

[ QUOTE ]
To maintain that any law which incindentally burdens an aspect of a religion is consitutionally impermissible is to advocate for anarchy, and to advocate the position that the constitution permits any religious tenet to trumpt the reasons we have law, primarily for social order.

[/ QUOTE ]

perhaps.

but to continue to make laws prohibiting specific practices which are part of 'religious' ceremony defines what religious practices are and are not permissible in this country. simply by defining these practices as illegal, the state has thus defined which religious practices are legal, thus defining which religions citizens are free to practice. how are church and state separated here?

[John Cole]

[ QUOTE ]

Here's someone who supports Scalia's dissenting opinion on the Supreme Court case in question who believes his dissent was motivated by his beliefs on homosexuality. Somehow I respect that more than those who are intolerant of gays(like those on the religous right) but state that the decision wasn't about gays rather it was about states rights.

[/ QUOTE ]

Tom, forgive me, but I fail to see the difference. Do you mean the homophobe that announces his presence and position somehow deserves more respect than those homophobes who hide behind legal arguments? I'd say it just makes them a bit easier to spot.

John

[adios]

" Do you mean the homophobe that announces his presence and position somehow deserves more respect than those homophobes who hide behind legal arguments?"

I have more respect for the honesty of the homophobe that announces his presence.

[ACPlayer]

Honesty always commands more respect than obfuscation.

I remember being shocked by how openly race issues and positions were discussed when I first moved to Johannesburg following the end of apartheid. After a while I realized that the open conversations about race is far better than the use of code words, "rational" arguments etc.

[Redhotman]

I have a couple of friends in the constitutional party, basically all it is the Christian Constitutional Party...
They turnt o the constitution when it favors them, and turnt heir back when it doesnt help them...Just like the rep. and dem. , they are all COMPLETE HIPOCRITES.

By the way, you dont need a church to get married...

(edit: this post is out of place)

[John Cole]

AC Player,

When someone tells me how honest he is, I count the spoons, says Emerson. A homophobe is a homophobe, no matter what his raiment. I do not believe that I can have any sort of worthwhile discussion with a rascist or homophobe, and no matter what he professes, I'm sure I'll have a good clue about where he stands whether he is kind enough to simnply declare his prejudices or couch them in some other form.

I'm sure you didn't have too many "rational" discussions with rascists.

John

[ACPlayer]

I am not defendiing homophobia or racism - far from it.

I am saying that i prefer dealing with, and find that person to be in some ways more honorable, someone who is openly racist/homophobic. The person who says something like "I am not a bigot but ... insert some 'rationalizing' argument" is not honest.

Further, I suggest that shutting off discussions with people that you disagree with is not a good way to solve problems. On a personal level, it may not be a big deal, but at a societal level it becomes a major problem. I offer two examples:

1. The pro-choice and pro-life people are unwilling to get together and work on the problem of abortion on demand (or even accept that it is a problem). Perhaps an open discussion, acknowledgeing each sides issues will lead to a society where safe abortions are available yet not a convenient form of contraception.

2. Picking up on the main arguments in the forum, if Israel and Palestinians actually better tried to understand and solve the problem rather than condemning each other, and finding excuses to prolong the conflict, we may have progress.

So, once again, while not defending the position, one defends the right of the person to have the view, and, if there is a problem that this position is having to society -- deal with it honestly.

[J.R.]

Because the law can't ban a specific religious practice without demonstrating a compelling state interest, which is hard to come by. The idea being that laws that seek to prohibit religous practices for religious reasons are invalid (no church based goverance), but laws that ban religious practices for other reasons, primarily social order, are valid. Yes a cynic and perhaps realist might point out instances where social order and the wishes of a dominant religous organization might converge, but the presence of a secular motivation to promote the social good is the defining characteristic of permissable regulation.

[andyfox]

This I don't understand, Tom.

Of what value is honesty is it's in the name of something reprehensible?

I hear people say that they like so-and-so, usually an outspoken radical on the left or right, because "he speaks his mind." So what? Hitler spoke his mind. So did Mao. I have no more respect for the honesty of a tyrant (or homophobe) that announces his presence.

[MMMMMM]

"I have no more respect for the honesty of a tyrant (or homophobe) that announces his presence."

But would you not have even more reason to fear one who cloaked his true intentions yet still worked as hard towards the same ends?

[andyfox]

I don't know. I guess it's not whether someone reveals or hides their intentions but rather what power they have and use to put them into effect that matters. But I certainly have no more respect for anyone who reveals their true intentions, simply bvecause they reveal them, than for someone who doesn't. It's the quality of their intentions that I would either respect or disrespect.

Take American Airlines. (Please.) Should I respect him because he is honest?

[Utah]

Great article today in the National Review in response to the original article - Scalia Was Right (http://www.nationalreview.com/comment/lawler200310270839.asp)


Best passage. "Justice Scalia, in his dissent in the recent sodomy case (Lawrence v. Texas), does not deny or even bemoan the fact that "[s]ocial perceptions of sexual and other morality change over time." And he notes without judgment that "homosexuals have achieved some success" in their effort to persuade their fellow Americans that "consensual homosexual acts" should be perfectly legal. He even observes that it's true enough that laws that seem necessary and proper to one generation often seem oppressive to another. Later generations are, under our Constitution, perfectly free to repeal such laws. But that liberty is given by the Constitution to the people, not to the Court.

[ACPlayer]

Can you acknowledge his own honesty about his views, while being totally turned off by the views themselves?

Can you be turned off by the person who claims to be not a bigot yet because his best friends are from another race and he has lunch with them every day; yet would fight tooth and nail if his daughter wanted to marry a person from another race?

[adios]

Thank you Utah for bringing this to my attention. It's sincerely appreciated. Definitely gives me a lot to think about.