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Ethical Philosophy: SCALIA'S DISSENT to the recent DOMA case, Prop 8 and Homosexuality in general

From: Richard M.
Sent on: Saturday, July 13, 2013 6:33 PM


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Ethical Philosophy
Thinking Clearly
through our cultural distortions

Topic for Examination on July 14, 2013

Scalia’s Dissent

What going on with Scalia and his judgments of other people’s SEX lives?

Antonin Scalia’s disapproval of other people’s sex lives goes way back and he always comes down on the same side, the conservative Catholic side. Let’s review his history.

A Texas anti-gay sodomy law (anti-gay in that it did not forbid this activity to opposite-sex persons) reached the court in 2003. In practice, the law had not been enforced because; performed in private, there were no witnesses, only criminals. Due to an accident, a Houston policemen witnessed the terrible deed and arrested both parties. They were tried, convicted and their conviction upheld.

Ultimately, the U. S. Supreme Court overruled the lower court and declared the Texas statute unconstitutional. That was the Lawrence v. Texas case.

The majority opinion held that a state has no rational interest in criminalizing any sexual practice between consenting adults in the privacy of their own home.

Since the Bower’s Case (which had affirmed anti-sodomy laws 17 years earlier with many of the same judges on the court) the following things have happened.

1. there has been much criticism of the decision at home and in Europe
2. some states have decriminalized homosexual activities
3. society has had an emerging awareness of a right to personal privacy
4. old laws are now little enforced, they are no longer considered valid
5. there is in fact, no long standing tradition of condemning such acts as assumed in the Bowers case

Scalia dissented! Society (in the form of the legislature) has the right to decide matters of morality and unless there is a fundamental right in the Constitution, the court cannot intervene.

He said that he has examined the entire constitution and could find absolutely no fundamental right to homosexual sodomy. Therefore, society (the state legislature) has the right to outlaw it as immoral.

The majority said that is not the point. No particular sex act is a fundamental right. The idea is that each person is entitled to his own decisions about his relationships and private sexual contact. More than that, he has the right to decide about his beliefs, the meaning of his life and apparently, his choice of fetish gear, kinky hats in this case >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Scalia says no! Fundamental constitutional rights are not created by
1. criticism at home or abroad,
2. some states decriminalizing immoral behavior,
3. an emerging awareness or
4. the failure of this generation to enforce laws placed on the books earlier.

Fundamental rights do not spring into existence from any of those sources. They were written into the Constitution by the authors of that document. If you want more rights, amend the Constitution. Leave it to the people, not the judges.

And there most certainly is a long standing condemnation of sodomy. It may have been in the form of laws without specific reference to homosexuality because the concept was not invented until the mid 1800’s, but the acts themselves have always been condemned. Sodomy, gay or straight, has long been outlawed, even in the Bible.

Author’s Note: It is my understanding that Christian “sodomy” originally meant any “unnatural sex act” which was anything other than the missionary position in the marriage bed. Any lapse into “sodomy” was simply a failure of restraint. It could happen to anyone, like getting drunk. All men were the same, some simply failed to obey the law. In the pre-Christian world, homosexuality was not a concept. Roman men simply liked to stick it in, into who was not a moral issue, only a matter of taste. The statue shown above is from Pompeii (Herculaneum) and was a popular joke. Today’s British Museum reflects the later Christian attitude that finds it shameful, horrifying, disgusting, OMG!!!

Scalia wrote “This effectively decrees the end of all morals legislation.” “Todays opinion…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 be attached to homosexual conduct.”

What’s more, there is no way to distinguish sodomy from other immoral acts such as “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” If we allow sodomy, why not the rest?

Damned Good Question!
Scalia predicted that if we accept homosexual sodomy, we will have to protect all the other “immoral” activities (listed above.) Ultimately we’ll have to recognize them as legitimate relationships. Finally we will be forced to acknowledge them as married!

In that prediction, he has received much credit for seeing into the future. It is a future he looks upon with horror, but his point is well made.

If we are going to accept all sorts of private relationships as legitimate and not-the-states-business, why not endorse them as official “marriages?”

Ooooo! I could marry a chicken.

“It creates a “massive disruption of the current social order.”

My Questions

Since 1983, has there been a “massive disruption of the social order”?
There has been in Congress, does that say something about Congress?

Could Scalia find a fundamental right to straight sex in the Constitution? If so, where? If not, would he then refuse to intervene if a state forbad all sex?

If a man and a woman play chess together but do not have sex, and then want to get married, may they? Yes, the assumption is that their relationship is sexual even if it is not.

However, if two men play chess together and want to get married, may they? No, the assumption is that they are having sex which is immoral, or illegal.

Or is there no assumption about sexuality in the marriage license at all?
There is no assumption of childbearing, older people get married all the time.

So what is marriage based upon, other than unthinking, unconscious custom?

Fast forward to 2013 and the DOMA case (U.S. v. Windsor)

In the DOMA case (U.S. v. Windsor) the majority declared the Federal Defense Of Marriage Act to be unconstitutional. Once again, Scalia’s dissent was as long as the majority opinion.

The majority held that DOMA was unconstitutional because it was mean-spirited; its intent was to harm a despised group. Congress’s goal was (in the majority’s words) to “demean,” to deny them “equal dignity”, “impose inequality” and finally brand them as “unworthy” with a “stigma”.

Oh no Scalia says! “I am sure these accusations are quite untrue.” It was not mean-spirited, the Republicans in the House had nothing against homosexuals. Even if it was mean spirited, that is no reason to strike down an otherwise constitutional statute.

“But to defend traditional marriage is not to condemn, demean or humiliate those who would prefer other arrangements…”

But doesn’t the word “defend” actually mean that something is being attacked?
Is traditional marriage actually under attack by same-sex marriage?

So if same-sex marriage is an attack on traditional marriage, how can traditional marriage not be an attack on same-sex marriage? We are not talking about the cavalry charging up a hill. We are defining a concept.

The court has denied us “…a system of government that allows us to rule ourselves” through the legislatures. Instead “The court has cheated both sides, robbing the winners of an honest victory and the losers of the peace that comes from fair defeat.”

Really? Is there “peace” from fair defeat over moral issues? When a legislature takes a vote, do people change their minds about morality?

In other words, this should be hammered out in the 50 legislatures over time. The Supreme Court has robbed the people of their choice.

“By formally declaring anyone opposed to same-sex marriage (to be) an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”

“When the court declared a constitutional right to homosexual sodomy , we were assured that it had nothing…to do with whether the government would give formal to any relationship that homosexual persons seek to enter.” “It takes real cheek for today’s majority to assure us…that…formal recognition to same-sex marriage is not the issue here…”

“It is just a matter of listening and waiting for the other shoe.”

“The other shoe” meaning a court decision declaring that no state can deny marriage to same-sex applicants.

My Questions

Is he right? Should we allow each state legislature
A. to decide for itself what is moral and immoral for its residents or should we
B. protect the homosexual minority from abuse by the majority?

We protected black Americans from the white majority in Southern states. We protected women from the male majority in the legislatures, or did at one time.
How are blacks and women different from homosexuals?

So what standard would you use for moral choices? If harm, you will hear Scalia say again (as in Lawrence) “protecting themselves and their families from a lifestyle they believe to be immoral…” In other words, anything going that I don’t like, (even if on the other side of the planet) harms me!

If we accept homosexuals, that is only the tip of the sexual iceberg. What about the transgendered, foot fetishes, smoking fetishes, acrotomophilia (amputated limbs), agalmatophilia (mannequins), coprophilia (feces), asphyxiophilia and peacock feather ticklers to name only a few. It truly is a rainbow.

How about pedophiles, necrophilies?

If we are going to throw out all moral objections that are only based on how I feel about it, what standard do we use to set behavioral boundaries?

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