Why wouldn’t they be “qualitatively idental” acts?
Esprix
Because the Torah says so, Esprix. Religion makes all the difference, don’t you know?
Since the Justice in question is very much in favor of personal respononsibility and not shrugging off problems as if they were the fault of others or as a result of a fate over which we have no control, then I’m sure said Justice wouldn’t mind the reworking of your comment to say:
This first part is Scalia knowingly declaring his bigoted views in polite language. But like all rationales of bigotry, it sounds confusing to me.
Making gay sex illegal, but not straight sex, would not be disproportional? Please - Scalia made the basis for his “legal” argument quite clear.
Living as a homosexual is indistinguishable from being homosexual. Who’s confused? If the concept of sexuality being a fundamental part of one’s identity, and not simply the hobby status you’re trying to relegate it to, is “nebulous” to you, then I suggest you’re evading the basic point of the debate.
Oh, I am, I am - and it isn’t pretty.
It is if you’re going to use his ability to craft an argument to bolster yours.
I guess this makes sense, but only if one considers heterosexual sodomy and homosexual sodomy to be qualitatively the identical act. If one considers them as two distinct acts, the comparison doesn’t hold. **
[/QUOTE]
I’ll join the chorus: Why do you say “If”? Is the point you raised also nebulous to you?
Try this on for size: The issue was settled for me long ago by hearing a question that wasn’t even directed at me. The rest of the “so-called homosexual agenda” follows ineluctably. So I’ll ask you, then, Izzy: When did you decide to be straight?
Matt & Esprix:
I don’t think you can set a hard and fast rule about what is and what is not the same act, regarding acts that are similar but not identical (or the same physical action done with a different object). I imagine it would depend on language, culture and the thought process of the individual. Are eating and drinking the same act? Eating a steak and eating a carrot? Driving a semi and driving a go-cart? Ultimately it boils down to how you classify things in your mind.
In this case, I would venture to guess that most people would classify them as two acts. YMMV. It would also seem that the argument that Miller advanced was not - to my knowledge - the basis of any legal opinion. So it would seem that this argument is not accepted by either side of the legal debate.
homebrew: ;j
OK, I see that you are hopelessly lost on this issue. But for the benefit of those keeping score at home, I shall recap, and hopefully, clarify:
The word “because” is the problem here. Elvis is saying that, under the hypothetical argument, the precedent (“it’s legally acceptable to legislate” etc.) is the result of the antecedent (“it only affects black people”). And by saying “you might as well argue” etc. he implies that this argument is analogous to an argument that has been put forth by Scalia. In actuality, the fact that “it only affects [members of a given group]” is an argument to make it unacceptable, not acceptable - even according to Scalia. Scalia is merely arguing that this condition does not always suffice to make it illegal. What Elvis did is to completely reverse Scalia’s argument, and then complain about it.
You.
Living as a homosexual might indistinguishable from being homosexual. But this does not mean that performing homosexual sodomy is indistinguishable from being homosexual. (I could have sworn that I pointed this out several posts ago.) This distinction is crucial here, as the Texas statute did not outlaw “living as a homosexual” but only homosexual sodomy.
I don’t need his ability to craft an argument to bolster anything. It was merely an observation.
It’s interesting that you should bring this up. Not because it has any connection to the legal issues being discussed, but precisely because of the very fact that it does not. What you are acknowledging is that the legal and constitutional issues concerning the legality of outlawing homosexual sodomy were settled for you by consideration of questions that have no bearing on the legal issues themselves, but instead concern “the rest of the “so-called homosexual agenda””. This makes your criticism of Scalia (& “certain Dopers”) especially ironic. But it is not too surprising, as I mentioned earlier.
Well, I’ve been obfuscated to death - anybody else feel like a fried egg?
Izzy, as usual, you astound me… and not in a good way.
Esprix
Izzy, once in a while, do you think you could drop the Talmudic pilpul and answer questions in a straightforward fashion? Just a thought.
This clears it all up for me.
Which is why I am now officially proposing legislation which will make eating carrots and driving go-carts illegal … because I don’t like carrots or go-carts.
This is a huge load off my mind … I mean now that I’m defending the sanctity of steak and semi’s and all.
This is a tortured definition. One might just as easily say it’s legal to be a jaywalker, just as long as you don’t cross the street outside the crosswalk.
What you are in fact suggesting is that being a sexual creature is separable from the sexual act. And while this can make sense up to a point, it must eventually fail. If I have heterosexual feelings, yet I never once act on them in my entire life, the operative effect is not that I am heterosexual, but asexual. The case is identical for homosexuals–only in that the (now former) law would require homosexuals to live in practice as essentially asexual beings whereas heterosexuals would be under no such compulsion.
Going beyond this…
It is not merely the definitions which are at issue. The larger question raised by the Kennedy opinion is: What compelling State interest exists that would have us interfere with intimate privacy between consenting adults? Clearly the majority (on the Court) feel that there wasn’t any such interest of sufficient import.
Was such an opinion borne somewhat of prejudice? Probably–as are most opinions. If it was a prejudice, it was a prejudice in favor of personal freedom over traditional dogmatic restriction. It is rather difficult to see how the State objectively profits from a prohibition of the sexual activity we are discussing. The only argument that could be rationally made (for banning any unprocreative, consensual sexual acts) would be along the line of inherent health risks posed by intimate contact of any nature… but logic would suggest that poor personal hygiene should be legislated against first and foremost if this were the actual rationale. The other arguments are horribly subjective and eventually assume society is effectively better off for suppressing the virtually harmless freedoms of a minority.
Such assumptions as these that purport to act for “our own good” need to be established in fact for all to see, lest the freedom of all be usurped by the well-meaning ignorant.
I’m not sure how you are using the term “being a sexual creature”. But the law is not (and cannot, obviously) outlaw the existence of homosexuals. For this reason, your jaywalking analogy is irrelevant. (A jaywalker is someone who crosses outside the crosswalk.)
Even assuming that your definitions here are accurate, this would merely imply that you happen to have a term (asexual) for someone who is prevented from satisfying his natural sexual urges. Substantively nothing is changed.
Invent a term for someone who cannot go about in his preferred state of dress - say “PDMD” (for “preferred-dress-mode-deprived”), and the exact same principle applies to Scalia’s nudist analogy. A law outlawing nudity would force nudists to live in practice as essentially PDMD beings whereas non-nudists would be under no such compunction.
The essential issue is whether a law that technically affects all equally but has disproportionate impact on different groups based on their different levels of desire for the forbidden act violates Equal Protection. Scalia’s analogy addresses this directly.
(The rest of your post is unconnected to my posts here.)
Well, Izzy bubbeleh, if you’re insisting on saying that morality should be subordinate to the law as it happens to be written in a particular place and time, not that law should be a codification of morality, you’re on your own. A cite from you from any major religious or philosophical text admitting that secular law takes precedence would support you here, but I’m not holding my breath waiting.
You still seem to persist in seeing sexual preference as a voluntary act, akin to a hobby, not as an essential and unchangeable defining characteristic of one’s being. Expressing one’s sexuality is fundamental to life for most of us.
But, if your own sexuality means nothing more than your hobbies to you, then I genuinely feel sorry for you.
BTW, declaring the subject matter “nebulous” and then accusing others of being “confused” is also not helpful at all. An example of your “nebulous” understanding is using “asexual” as a synonym for “celibate” - 'tain’t so.
Don’t bother. I’ve not said nor implied anything connected to this issue.
I did not declare the subject matter “nebulous” - I declared a particular argument to be nebulous. I pointed this out already. I rather suspect that beyond being confused, your persistent twisting of this term is just another example of your intellectual dishonesty. (I believe I’ve pointed this out in the past as well).
Actually this is just another example of your confusion/dishonesty. I did NOT use asexual as a synonym for celibate. mrblue92 did this. In addressing his remarks I specifically prefaced by saying “Even assuming that your definitions here are accurate” etc.
You have no shame.
As I quoted in another thread (and as matt has often quoted), the law is clearly equal in that neither rich nor poor are permitted to sleep under bridges.
:rolleyes:
Esprix
I presume that questions you do not answer substantively, but with invective instead, are conceded. I do feel sorry for you, really.
There was a celebrated Wild West gunfighter named Bat Masterson who ended his career as a sportswriter in NYC. He died at his desk “gripping his pen as tightly as he had once gripped his six-shooter”. And his final written words were:
These are valid as poignant observations. They are not necessarily valid as legal arguments.
Hmm… this type of reasoning does not speak well of your defense against charges of dishonesty. By your own logic you’ve conceded. 
(I, by notable contrast, have addressed every legitimate argument. I have not addressed your attempts to pretend that I’ve said things that I did not say, other than to point out the distortions. Sorry if this crimps your style).
I’m sure this is also true.
And you seem to be arguing that, because they’re not, they shouldn’t be.
Esprix
Not at all. What we are discussing is a legal argument put forth by Scalia in his dissent. In the particular context of judicial opinions, what is important is (or should be) what the law or constitution actually says, not what it should say. Therefore, in assessing the reasonableness of Scalia’s argument, what is important is to what extent his argument is valid as a legal and constitutional argument under the current system - not to what extent it would be valid under your preferred legal system.
Furthermore, I do not imagine myself to be a great legal scholar, and cannot independently assert that Scalia is correct in his argument. Justice O’Conner at least would appear to disagree, and I haven’t even read her ruling. What I do say though, is that Scalia’s argument is a reasonable argument, and that the particular analogy to nudists is a valid one. (Absent a countervailing argument I would be inclined to go with it, but it is not out of the realm of possibility that someone more learned or cleverer than the posters to this thread could make a valid counter-argument.) That is all.
You could have held your breath, it isn’t a hard cite to find:
I think what Izzy is trying to say is that sexuality does not define who you are.
But, that hardly means that a consentual act, no matter how repugnant to others, should be outlawed. It also doesn’t mean that it plays NO part in who a person is.
Someone who is “being a sexual creature” is a creature who is being sexual. In other words, someone who is sexually active. Even if you do distinguish between a homosexual and homosexual conduct, the net effect is that a law against homosexual conduct enforces celibacy on homosexuals while not enforcing celibacy on heterosexuals. Thus the Equal Protection argument is entirely correct.
Not if I define it as someone who merely would like to cross the street outside the crosswalk. (i.e. an example of a tortured definition, which was the point of analogy.)
I fail to see how an analogy between public nudity and private sodomy qualifies as a reasonable argument. If there were a law against all private nudity, he might have a point… as it is, he’s just making a strawman.
And to quote more from O’Connor (whom he was arguing against):