Some forms of bestiality are harmful to the animal, and, as well, the matter of transference of diseases was mentioned. It really is a poor comparison to make.
(I do agree that a human having sex with a horse is more risible than anything else. The horse simply isn’t going to care. “Once you’re finished back there, ya gonna feed me?”)
Yep. It’s pretty obvious why bestiality is banned. For mostly the same reason people want homosexuality to be : they find it repulsive. If it were for any other reason, like the most commonly mentioned : “animals can’t consent”, they would want eating meat, riding horses, wearing leather, and so on to be banned too. They only have an issue with bestiality because “Yuck!:eek:”
Was it what you meant?
The seatbelt analogy is proper because if there is no fundamental right to homosexuality or driving a car unbelted, the state can regulate both:
[QUOTE=Part of Scalia’s dissent]
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. Ante, at 6 (“The liberty protected by the Constitution allows homosexual persons the right to make this choice”); ante, at 13 (“ ‘ These matters … are central to the liberty protected by the Fourteenth Amendment’ ”); ante, at 17 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:
[/QUOTE]
As long as no substantive due process rights are violated, the state is free to outlaw homosexuality, bestiality, working more than 60 hours in a bakery*, non-belted driving, and any number of things.
*Scalia mentions the 60 hours per week as a throwback to the now discredited opinion in Lochner v. New York (1903) which held that a law setting the maximum working hours in a bakery at 60 was a violation of a person’s fundamental liberty to contract his labor on the terms he saw fit.
Since we now recognize there is no such fundamental right, the state can set maximum labor hours or forbid homosexuality if it wants because the majority does not recognize it as a fundamental right.
I think that the issue is this: Scalia isn’t really saying that if we allow A, then we must allow B, because A and B are similar. He’s asking, based on the rationale they’re using (“liberty” rights or laws enforcing moral views), what is the principled distinction that allows A but continues to ban B. Remember, Scalia is a bright-line rules guy, he’s not going to be happy with a standard that says that society can’t impose its moral views on this activity, but that activity is really immoral, so that’s okay. For him, making that call is the province of the legislature. But his argument is a fairly routine “parade of horribles.” He’s not saying that homosexuality and adult incest are the same. He’s saying that, if you can’t ban homosexuality because private sexual decisions are constitutionally protected and immorality is an unacceptable basis for a law, then on what basis can you sustain a law against adult incest?
I don’t see how your last and second-last statements aren’t contradictory. If he sees no difference upon which to base a law, then isn’t he saying the two are effectively the same? If he’s saying that there is no principled distinction that allows A but bans B, or that we must be very careful looking into the subject because it’s very possible that allowing A would mean allowing B, then why isn’t he saying that A and B are similar to the point that no disctinction may be drawn between the two? That they are so similar, in fact, that even approaching such a law is a risk, due to how easy it would be to allow one and therefore allow the other?
For what it’s worth, I think he sees plenty of distinctions, he’s just trying to challenge the majority’s reasoning. Much of what Scalia (and others) says in dissent is mildly sarcastic.
But (and I’m struggling to articulate it because it seems so straightforward to me), he’s says that the *reason *for banning A and B are the same. And that if A can’t be banned, because the reason is unacceptable, then either 1) B can’t be banned or 2) the decision isn’t really because the reason is unacceptable.
Whether or not A or B are sufficiently immoral to be banned is supposed to be a legislative question. If immorality cannot form the basis for a ban, that has to be true for any ban that is based on immorality. What he’s saying is that there is no distinction between society’s motivation in banning them, not that there’s no distinction between the things being banned. He’s accusing the majority of being intellectually dishonest, not really suggesting that we’re on a path to legalized incest.
Do you believe there is a fundamental right to sexuality? Do you think that the state can properly outlaw blowjobs, anal sex, or fornication without violating the Constitution?
Why not? Where would such a right come from? And, for that matter, if there is a “fundamental right to sexuality,” does it have limits? Or is all sexual regulation impermissible?
Because the fundamental principle of a limited government, combined with the concepts of natural rights, indicates that a person has the right to decide how/when/manner in which it may express itself sexually.
Take your pick: God, nature, Constitution, 9th Amendment, Right to Privacy, Right to control your own body.
Of course it does. All rights, even fundamental ones, have limits. You can’t have sexual relations with people who can’t/don’t consent. You can’t have sexual relations with children, animals, for money, or yourself in public. Just because there is a fundamental right to privacy/sexuality doesn’t mean anything goes.
I, for one, am confounded by people who think the government is able to regulate even the most intimate aspects of our lives.
Footnote four?
That’s plausible. I suppose to know what Scalia really thinks we’d need to take his entire writings into question.
But he doesn’t appear to me to be referring to a specific immorality basis on the public’s behalf, per **Bricker’s **explanation, but a general understanding of potential bases for such interpretations/legislation. That there is no reasonable point of distinction, full stop, not just that immorality isn’t a reasonable distinction.
I think the point some of us are making is that the government does it all the time. I’m on the extreme libertarian end of what I think the government should get involved with when it comes to two consenting adults. So, open the floodgates, and it’s fine with me. I just understand the idea that the floodgates can be opened only under certain, not-very-well-defined limits.
The government has no business telling me with whom I may have sex (consenting adults) or if my sister wants to let her dog bone her, or if I want to bone my sister, or if I want to sort some cocaine. And yet some large % of the SSM-friendly public isn’t on board with that.
So, make gays a suspect class (they seem to qualify just fine), and get on with it (ha!). But don’t do some hand-waving and pretend that there is some judicial principle being relied upon.
It does not prevent the marriage, which is between the souls and their god, but it prevents social acceptance of their marriage, a way of punishing others for love or discouraging them from following their heart. A way to inflict other people’s views of how things should be onto others who can’t exist under those rules.
And some SSM opponents aren’t on board with the idea that the government can constitutionally require couples to get married before they can have sex, can require the missionary position only, or arrest people for having sex with someone who is not their spouse.
That’s one of the many problems with this slippery slope argument that Scalia makes … it goes both ways. Just as defining the fundamental right to privacy to include sexual encounters between consenting adults could lead to siblings having sex, so does not recognizing it could lead to laws allowing the jailing of people who cheat on their spouses, who do it on a Sunday in reverse cowgirl, or waste their valuable seed by masturbating. It works both ways.
I’d buy that if you admit that almost all of constitutional interpretation is hand waving pretending their are judicial principles.
I’m not sure why that’s a “problem” with his argument, other than you disagree with it. He would simply say that it’s a legislative choice. There are undesirable laws that are nonetheless constitutional (and, for that matter, probably desirable laws that are unconstitutional).
It’s not necessarily a problem with the argument, other than it is unpersuasive. He points out the alleged harms that could come about if they recognize a right to privacy that includes sexual relations among consenting adults, and completely ignores the harms that could come about if they don’t. I find it completely unpersuasive unless you look at both sides, which Scalia most definitely doesn’t.
I’m sure that’s what he would say. That doesn’t make it any more correct or his argument any less myopic.
But Scalia’s point is, as I’m sure you know, so what? Why not let the people decide, through their legislators where to draw that line? If it is so onerous a law, it will be overturned democratically. That is, where the constitution is silent.
SHHHHHHHH!!! 
Because our Constitution did not envision a system where only the legislature gets to decide matters of personal rights and constitutionality. Having created a system of government that had three branches, and having a keen awareness of the problem with the tyranny of the majority, the founders created a system of checks and balances where it is more than just the legislature deciding what is constitutional.
But that’s a discussion of the role of the judiciary in constitutional interpretation. I think Scalia’s point with the homosexuals = pedophiles stuff was much more about rhetorics and less about an insight into constitutional theory. And I, for one, would like it if he showed both sides of the slippery slope argument.
I won’t tell if you don’t.
You put gay marriage up for a vote, as a matter of referendum, because it is benign. The majority of people who oppose it are religious. Religion is separate from state and religion cannot be used to to enact government policy or law. Only a referendum will remove the power of the representatives and provide true citizen acceptance by everyone wanting to vote that day.
Not even the supreme court should be able to override a national referendum. The only thing we should do to empower the referendum is put it up for vote every election cycle until we get a super majority.
There is no such thing as a “national referendum” in the US. There is no provision in the constitution for such a thing.