WILLIAM: It’s outrageous that the police can set up checkpoints along the highway for HOV (high-occupany vehicle) violations! They have no right to demand that I slow down so they can peer into my windows and make sure I have two passengers! It violates my privavcy!
MARY: Why?
WILLIAM: Because the police can never stop anyone’s car unless they have probable cause that THAT car’s driver committed a crime!
MARY: What if the police are looking for a child that was just kidnapped along that exact road? Can’t they set up a roadblock and look into car windows going by?
WILLIAM: Now you’re comparing HOV violations to kidnapping children!
But Mary didn’t really do that. She offered up the two cases not to compare the two infractions of the law, but to explore the distinctions, if any, in the rule proposed by William.
When Scalia “compares” gay behavior to other types of behavior that most of society still regards as morally depraved, he’s doing the same thing: not saying that the two behaviors are equivalent, but asking what rule precludes us from forbidding same-sex sexual relations, but allows us to forbid, say, bestiality, or incest. What, he is asking, are the characteristics of the rule that supposedly limits government power in this respect?
He’s not comparing the acts – he’s asking what the rule is, and inviting the reader to consider that a far-reaching rule would have effects beyond the instant case.
Oh, rubbish. It’s pretty obvious why bestiality and incest are banned. If he was asking the question in good faith he’d limit his inquiry to, say, polygamy. But he doesn’t. Hell, he even compared it to murder in Romer. I don’t think Scalia is the ideologue many here do, but his personal views are clearly evident when he writes anything about The Gays.
Beastiality, perhaps, but not incest. Bans on incest are based on the ick factor and bad science-- just like bans on homosexuality were (and are).
Eh. Scalia likes to shock people. That he chose shocking examples is not, well, shocking.
I think Bricker nailed it in his post, above. Giving a counter example to demonstrate the flaw in an argument is not to compare the two situations, only to compare how the law treats those situations.
That is, i agree it’s obvious why we wish them to be banned, and why it’s a good idea to ban them. But it’s equally “pretty obvious” that the judicial rule should not be, “Hey, allowing this ban is okay, for reasons that are ‘pretty obvious.’ And striking down restrictions on same-sex sexual conduct is judicially permissible, for pretty obvious reasons.”
The judicial role should be to enunciate a rationale under which same-sex sexual conduct is constitutionally protected but incest and bestiality are not. For example, “Anything done between consenting adults is fine, and forbidding such conduct violates the Due Process Clause” does not work, because an 18-year-old brother and an 18-year-old sister, both adults and both affirming their consent, are also protected by the claimed rationale.
So, no, when it comes to striking down or upholding legislation, I don’t agree that “pretty obvious” has much traction.
Indeed. I’m sure that RNATB is not proposing that the judicial rule for what behaviors are banable should be: “whatever is pretty obvious”. What is the rule, and how does homosexual behavior differ from other behaviors that the rule might now allow which were illegal before?
Quite right. I am saying that “ick factor” (or moral disapprobation, as J. Scalia would put it) is not a legitimate state interest, standing alone. Bestiality and incest are not banned because of the ick factor, standing alone. Homosexuality is banned because of the ick factor and what used to be scientific consensus, which is long dead.
Maybe I’m not up on this, but I was under the impression that incest between highly consanguinous individuals pretty much always led to birth defects. Is that no longer good science?
There is a slight increase, yes. But only slight. And really not significant for cousins.
Still, we let dwarfs marry and have children and people with known genetic diseases to do so. There are many people who are allowed to have sex with each other who have a much higher likelihood of passing on genetic “defects” than do incestuous relationships.
Let’s say I’m deaf, and that my deafness is genetic and the genes I carry are dominant. That is, there is a 100% probability that any children I have will be deaf. Should the law be able to forbid me to have sex with anyone?
I’m not sure it was ever good science. The real risk involved in close relations having children is if their carriers for some genetic disease. Since they’d both be carriers, the kid would be pretty much guaranteed to get the illness. If they’re not carriers for anything, though, the chance of birth defects is not significantly higher than its for any other couple.
No, no, no. If they are carriers, the kid has a 25% chance of getting the illness (assuming simple Dominant/recessive genetics). Sickle Cell Anemia and Tay Sachs (to name two famous genetic disorders) operate that way.
Are you advocating the use of slippery slope arguments in the writing of judicial opinions? I’m a bit confused, because I generally see you advocating a much more limited view of judicial reasoning, where the case before the court is what is decided and grand pronouncements about other, unrelated cases, are generally disfavored.
Sure. Just first explain how its ironic that reality is liberal ties together with Scalia’s comparison of gays to things like incest and bestiality. He’s factually wrong, that’s not a bias at all
Of course he did, and Bricker is wrong. The reason is marked by how the conservative mind thinks: “If I disagree with something, there must be something wrong with it”
HOV lane violations and kidnappings are linked as a crime. There is no reason why Scalia should compare gays to murder, incest, or bestiality. He might as well have said “If we cannot have moral feelings against homosexuality, can we have it against Legos?” The fact that he chose to compare it to something awful like murder paints a pretty clear picture of what’s in his head. You and Bricker may not want to believe it, but he chose murder specifically to make the connection between the two. Has he ever compared gays to something positive like donating to the homeless or rescuing animals from shelters?
So I ask you again, what’s so ironic about Scalia’s gay-hating comparisons and the fact that liberals don’t fail at analogies in such a spectacular way?
In the real world (as opposed to your imagination), he didn’t do that. That’s what ironic.
But here’s a suggestion. Rather than hijack this thread, if you really think you have a case to be made, open another thread and let’s debate it there.
