The Spitfire's Grill
Regular Rants from a Pragmatic Liberal
Saturday, April 16, 2005
Scalia & Sodomy
What a fun topic.

So I've been hearing for the past couple days about Justice Scalia and his rant on homosexual sodomy. So I went and read his dissenting opinion. Now I'm no lawyer, but my vocabulary ain't so bad, so I can swim my way through a Scalia rant if it'll prove entertaining, and this one certainly was worthy. Here are some fun quotes:

There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880—1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable. (emphasis mine).

Under that logic, freedom from slavery wasn't a fundamental right "deeply rooted in this Nation's history and tradition" around 1850. Apparently, when we get something wrong, we shouldn't fix it. Sounds a lot like the man who plans on making Scalia the next chief justice---hmmm...

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 between 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 protection, 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.

...that just might make the Top 50 Obvious Yet Utterly Pointless Statements of all time..

Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

...other than the obvious question of who defines sexual morality (oh wait), doesn't this contradict his statement in the previous quote? Furthermore isn't it a problem that equal protection can be violated if it is justified on a "rational basis"? But let's continue:

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 directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

Well at lease we're gettin to the real reason here! This guy thinks that to be gay and have hormones is morally shameful. Why doesn't he address how these evil people came about (oh wait)?

Let me be clear that I have nothing against homosexuals, 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 criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. (emphasis mine)

Obviously this was written pre-Schiavo. I'm sure Scalia's gotten the memo (pun intended) how it is now Republican's belief that "imposing views in absence of democratic majority" is what will likely be necessary for conservatives to get their way.

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