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April 25, 2003
Scalia on sexual privacy
It appears that Senator Rick Santorum isn't the only one who thinks that the government has the power to regulate what happens in the bedrooms of consenting adults. According to a recent article in Slate magazine, Supreme Court Justice Antonin Scalia seems to agree
"It's conceded by the state of Texas that married couples can't be regulated in their private sexual decisions," says Smith [the plaintiff's attorneys]. To which Scalia rejoins, "They may have conceded it, but I haven't."Scalia, like Santorum, also seems to have no problem with gays - as long as they refrain from having gay sex.
Smith says these laws say "you can't have sexual activity at all" if you are gay and Scalia objects: "They just say you can't have sexual intimacy with a person of the same sex." See? No problem. Homosexuals remain perfectly at liberty to have heterosexual sex in Texas.Scalia even uses bigamy as a point of comparison in his questioning on the matter:
Then Scalia wonders whether state statutes that criminalize rape or adultery only among opposite sexes are similarly unconstitutional. Smith argues that this is quite different from "giving all people free rein to make sexual decisions except one small group of people." Scalia retorts, "You can put it that way. You can make it sound puritanical. But lots of laws make moral judgments. What about the laws against bigamy?"Worse, Scalia also seems to think that homosexuality is somehow contagious - that it could spread from teacher to student if a gay person happened to get a job teaching school.
Smith explains that the anti-sodomy laws have pernicious secondary effects—keeping gay parents from gaining child visitation or custody or employment, for instance—and Rehnquist wonders whether, if these laws are stuck down, states can have laws "preferring non-homosexuals to homosexuals as kindergarten teachers." Smith replies that there would need to be some showing that gay kindergarten teachers produce harm to children. Scalia offers one: "Only that children might be induced to follow the path to homosexuality."When Charles Rosenthal, the attorney representing the state of Texas, seems to make a wrong turn in his arguments, Scalia seems seriously rattled.
In response to a question from Justice Anthony Kennedy as to whether Bowers is still good law, Rosenthal replies that mores have changed and that "physical homosexual intimacy is now more acceptable." Since he suddenly seems to be arguing the wrong side of the case, an astonished Scalia steps in to say, "You think there is public approval of homosexuality?"Have I mentioned before that Justice Scalia scares me? This is the same Justice who believes that democracy obscures "the divine authority behind government," and that we can tell who God wants to have be our leader, as he will have grabbed his power through some form of battle. Oh, and Scalia's also the one who, when he was recently given an award for free speech banned the broadcast media from covering it.Rosenthal catches his pass, then runs the wrong way down the field: "There is approval of homosexuality. But not of homosexual activity." Scalia wonders how there can be such widespread "approval" if Congress still refuses to add homosexuals to classes of citizens protected by the civil rights laws. "You're saying there's no disapproval of homosexual acts. But you can't ... say that," he sputters.
Remember that Scalia was instrumental in the Supreme Court's decision to halt the recount of votes in Florida, following the 2000 election, and was the author of the opinion that essentially said that no recount should be done because, if the recount showed that George Bush had not actually won the state, it might cause a credibility problem for his administration (ignoring entirely the fact that if George Bush has not actually won the state, he wouldn't have had an administration to have any crediblity to worry about). Many believe that if Chief Justice Renquhist were to retire while Bush is still in office, W will want to make Scalia the new Chief Justice of the Supreme Court.
That would be scary.
As for the Slate article quoted above, you should check it out, if only for the wonderfully surreal conversation near the end about immorality, teaching German, just what Texas thinks of gays in general, and the feasibility of gay politicians in Texas.
Posted by thorswitch at April 25, 2003 08:20 PM
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