How can I find the dissents justice Scalia of the SCOTUS has written about gay rights?
Supposedly*, in a dissent he wrote back in the 70’s about some gay rights issue, he warned that gay marriage would be a legal inevitability (if whatever the issue was went a certain way). Later*, in his dissent on the DOMA ruling he warned that all states would be forced to accept gay marriage if the feds removed their opposition (or something like that). His arguments weren’t the histrionics you’d get from a homophobe**, but a sort of logical progression of ‘if we say a it’ll mean b, c, and d because of rulings x, y, z, and others’, so I’m curious, and they’d make a great cite for another forum.
This was in a segment of Rachael Maddow over at MSNBC (the liberal counterpart to Fox News), so it gets a hefty does of skepticism, which is why I’m asking.
** I’m using the literal meaning of homophobe here: one who is scared of homosexuality, and will fight against it’s spread the way others fight for freedom of speech, or the right to carry firearms.
As I recall, the Scalia dissent in* Lawrence* said that if you don’t allow a ban on sodomy based on the fact society disapproves of gays, you’ll never be able to justify a ban on gay marriage.
You’re right, it’s Lawrence v. Texas that has the passage I was thinking of. And I was able to find the full text of the Windsor (DOMA) ruling as well.
If you saw the segment, you would have seen her quote Scalia as in a real quote, not paraphrasing. The quote gets shown on screen. There was no need to be skeptical.
You’re assuming that because they’re on opposite poles politically, that they would use the same ‘tactics’ to support their ideological side. That is a fallacious assumption. It’s perfectly possible for one side to quote fairly while the other side doesn’t.
Yes, as I recall it was a typical AS histrionic attempt to deliver a 1-2 punch consisting of what he considered a reduction to the absurd argument embedded in an Armageddon scenario. Here’s the passage:
States have outlawed masturbation?? I never knew that. But it is true that every (criminal) law is based on a moral choice. Even murder. So long as going to the nearest tribe and killing the men and stealing the women was condoned, it wasn’t illegal. But tribes were pretty much built around ideas like that intratribal killing was not condoned. Apparently in Florida today, killing is legal so long as you felt threatened and you have no duty to withdraw from a confrontation.
But I would like to point out how bigamy is different. Originally, legal marriage (as opposed to cohabitation) was about property. In England, in the middle ages, only people with property bothered to get married legally. Marriage was all about what happens to your property when you die. No property, no need to worry. And you can see that bigamy (by which I mean two legal marriages) screws this up royally. So absent very tightly drawn pre-nups, I can see that society has an interest in banning, or at least highly regulating, bigamy.
Incidentally, where I would draw the line on moral crimes is that there has to be an unwilling victim. You can rant and rave about prostitutes selling their bodies, but coal miners do it all the time.
But it is true that every (criminal) law is based on a moral choice.
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It is debatable whether or not all criminal laws had morality in mind when they were first written, but there is no actual necessity that this be the case. You can legislate against murder not because it is wrong, but simply because people don’t want to be killed. Criminal laws can easily be modeled on (social) contract law instead of moral law.
Your first sentence has some truth to it, but I’d love to see some facts behind the second. Even poor people got legally married in the middle ages; property was always an issue, even if the property was meager.
Serfs – who had next to no property – also married, subject to the consent of their Lord.
Finally, people didn’t cohabit because it was against the teachings of the Church. People back then were extremely devout and to cohabit was a sin.
I’m not sure if that is true. There was common law marriage which just required consent of the two parties. Before Catholicism, England did not require a church wedding.
Scalia is right in this quote. If the purpose of law is to enforce moral behaviour, whose morals and how is it justifiable? If instead, the purpose of the state and of law is to prevent injuries, to be the arbiter of justice in disputes, to defend those who cannot always defend themselves, then some laws he mentions are unjustifiable.
Without law, you descend to street justice -harm me, and my clan will make you and your clan sorry. Unfortunately, that leads to chaos - clans protect their own rather than serve them up if punishment is deserved, since that would weaken the clan. Internally, they guy with the biggest club wins all the arguments. The state instead sets itself up as a common arbiter, impartial and willing to defend all citizens equally.
At that point, you have to re-examine all the laws Scalia mentions. Some, like masturbation and fornication, almost nobody expects the state to regulate nowadays. Obscenity and its offspring are an interesting one. You can’t “do it in the street” even if you are not scaring the horses. Why? How is an act that may be offensive to some but not everyone not acceptable in public? Why is it that a gay or mixed race couple kissing in public is “protected”, but anyone engaging in public sex acts is not? Already a “moral line” is being arbitrarily drawn. As for regulating what material consenting adults buy or sell in private, what business then is it of the state?
Similarly with bestiality, and it’s companion, cruelty to animals. Why is it you can flog a dead horse, there’s even a cliché for that, but you can’t do so while it is alive? IIRC it was St. Thomas Aquinas who said that those who are cruel to animals are likely also going to be cruel to people, but the same goes for people who punch holes in walls and smash inanimate objects. We recognize perhaps that higher animals are capable of pain and suffering and don’t want that inflicted - but how is boinking a horse or cow cruel? (Don’t need answer fast).
Similarly, prostitution is a business deal. If you allow the airy-fairy argument that all prostitutes are damaged good, then so what?? We don’t prevent consenting, capable adults from making bad decisions, and there’s a limit to how much we try to run their lives. So the same would go for adult incest. As long as there’s no coerced victim, what business is it of the state?
The one piece Scalia failed to mention is narcotics. We heavily regulate prescription drugs because someone could be misrepresenting substances that could be lethal, or charging for the hope a cure where there is none. But for recreational purposes - what business is it of the state? The only logical comeback is that an addict, like a child, in an entrapped victim… but we don’t make that distinction for alcohol.
As for marriage - marriage was a contract not just about property, but for the serfs and lesser nobles, also about supporting the children. We’ll ignore the other aspect - it gave the man ownership of the woman. So many fights are over women, and setting a specific title “this is my woman, any else touches her or looks at her funny, the state will back me up when I say stop.” (Hence laws against adultery, and the old exception to murder when catching the other guy in flagrante…) The last century has been about morphing marriage from an ownership relation to a partnership, and many legal concepts are slow to catch up. Even historical Islam, that allows multiple wives, requires you to support the wives and families and even support the ones you divorce.
But if marriage is a partnership, then any lawyer can tell you, you can tango with more than two partners in the “firm”. Polygamy is probably better established and more historical than monogamy. Why should the partnership demand “one of each” anyway? Why can’t it be anyone(s) as long as it’s consenting adults all around, not Adam and Elsie?
It is debatable whether or not all criminal laws had morality in mind when they were first written, but there is no actual necessity that this be the case. You can legislate against murder not because it is wrong, but simply because people don’t want to be killed. Criminal laws can easily be modeled on (social) contract law instead of moral law.
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I don’t see how these aren’t the same thing. Well, yes, you can have a morality based on something else, but the social contract is way of understanding morality. “Do unto others as you would have them do unto you” is definitely a moral statement. You are saying, ultimately, that murder is wrong because people don’t want to be killed.
In fact, I’d say that, any time you are telling someone else what they must or must not do, you are dealing with morality.