Scalia: ...gay Rights Are Easy Cases

[LeCharivari]

Justice Scalia made his views clear over the sodomy law in the US clear in Lawrence vs Texas when he dissented from invalidating the law and voted to retain it:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.... [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. .... So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.

Today he not only confirmed his views, but made how he will be voting in any case over Gay Rights and Gay Marriage very clear:

Justice Antonin Scalia says his method of interpreting the Constitution makes some of the most hotly disputed issues that come before the Supreme Court among the easiest to resolve. ....Scalia calls himself a "textualist" and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.

As he has said many times before, the justice said the people should turn to their elected lawmakers, not judges, to advocate for abortion rights or an end to the death penalty. Or they should try to change the Constitution, although Scalia said the Constitution makes changing it too hard by requiring 38 states to ratify an amendment for it to take effect. ....

I have to agree with him that in a democracy it should be the job of the courts to apply the law, not to re-write or to make the law, with or without the perceived wishes of the majority of the population. In any democracy that must be the job of elected politicians, but at the same time I sympathise with those whose politicians seem to lack the courage of their convictions to at least try to make a law for something they claim to support. If they get voted down so be it, that's democracy in action, but at least they'd be doing their job rather than passing the responsibility to someone else.

http://news.yahoo.com/scalia-says-abortion-gay-rights-easy-cases-073501926.html

[isanbirder]

In British law, a great deal depends on precedent, i.e. what courts have said (not legislators) in the past.

Scalia appears to be saying that what was right two hundred and some years ago is right now. Slavery? The death penalty for minor crimes? Why not go back to Sharia law, the Code of Justinian, Mosaic law, while he's about it? The people who wrote the US Constitution did a remarkable job for 1776..... but it's 2012 now, Mr Justice Scalia.

[submaniac]

well keep in mind Scalia is the loud mouthed prima-donna of the U.S. Supreme Court. The other justices generally keep a low profile...but not Scalia. I have a love-hate relationship with him. Like I generally disagree with his ideas, but really admire his writing and his logic in coming to some of his decisions. I dare say that he is also probably one of the most intelligent member of the Supreme Court. I dont know how he alone can affect future decisions...there has to be a majority and all.

Edited October 6, 2012 by submaniac

[geriatrickid]

well keep in mind Scalia is the loud mouthed prima-donna of the U.S. Supreme Court. The other justices generally keep a low profile...but not Scalia. I have a love-hate relationship with him. Like I generally disagree with his ideas, but really admire his writing and his logic in coming to some of his decisions. I dare say that he is also probably one of the most intelligent member of the Supreme Court. I dont know how he alone can affect future decisions...there has to be a majority and all.

Well, there's always Clarence to grab on to someone's coat tails, if it mean Clarence doesn't have to work,.......

[Jingthing]

The supreme court has become very politicized. (Bush vs. Gore the classic case in point.) Scalia represents the right wing side of that which in the American context, means anti-gay, anti-civil rights, anti-women's rights, anti-workers rights, always pro business/pro corporate, etc. I reject the idea that minorities should be expected to wait for majority support and legislative solutions to have their basic civil rights cases heard, such as fighting voter suppression against minorities (poll taxes) and school desegregation.

Edited October 6, 2012 by Jingthing

[submaniac]

well keep in mind Scalia is the loud mouthed prima-donna of the U.S. Supreme Court. The other justices generally keep a low profile...but not Scalia. I have a love-hate relationship with him. Like I generally disagree with his ideas, but really admire his writing and his logic in coming to some of his decisions. I dare say that he is also probably one of the most intelligent member of the Supreme Court. I dont know how he alone can affect future decisions...there has to be a majority and all.

Well, there's always Clarence to grab on to someone's coat tails, if it mean Clarence doesn't have to work,.......

oh yeah. Clarence Thomas basically says "Yes, Sir Scalia". He's like Scalia's mini me.

[LeCharivari]

..... I reject the idea that minorities should be expected to wait for majority support and legislative solutions to have their basic civil rights cases heard, such as fighting voter suppression against minorities (poll taxes) and school desegregation.

Well, that's what democracy is about - what the majority want, rightly or wrongly, and why those minorities elsewhere have had to educate the majority in order to get their rights. Going against that and imposing solutions that the majority are against in the name of "civil rights" for "minorities", however justifiable it may be to those minorities, is entering the realms of either dictatorship or anarchy.

[Jingthing]

Tyranny of the majority, more like.

My OPINION is that in a ideal democracy, the basic civil rights of minorities should always be protected, even hated minorities, who need this protection more than anyone.

Here is some interesting background on these matters:

http://www.democracy.../principles.php

Minority Rights I: Individual Rights vs. Majority Tyranny

Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.

Edited October 6, 2012 by Jingthing

[Jingthing]

well keep in mind Scalia is the loud mouthed prima-donna of the U.S. Supreme Court. The other justices generally keep a low profile...but not Scalia. I have a love-hate relationship with him. Like I generally disagree with his ideas, but really admire his writing and his logic in coming to some of his decisions. I dare say that he is also probably one of the most intelligent member of the Supreme Court. I dont know how he alone can affect future decisions...there has to be a majority and all.

Well, there's always Clarence to grab on to someone's coat tails, if it mean Clarence doesn't have to work,.......

oh yeah. Clarence Thomas basically says "Yes, Sir Scalia". He's like Scalia's mini me.

Clarence Thomas should have never been made a justice. He is very weak intellectually.

[LeCharivari]

The supreme court has become very politicized. (Bush vs. Gore the classic case in point.) ...

Basically they're a hand-picked non-accountable group with effectively limitless powers of interpreting any and all legislation who hold their posts for life - hardly a beacon of democracy.

If the Supreme Court supports the argument that marriage is a civil right for anyone and everyone at Federal level, where does it stop? Polygamy - fine at one time for the Mormons? Cousin marriage - legal everywhere in the West, except in a majority of US States? "Child" marriage - the minimum age in the US varies between States from 15 to 21?

Legislative solutions with majority support aren't the only democratic solution, nor are court cases to counter discrimination. Despite the suggestion that public and vocal protests, etc, are the only way to achieve progress, that is not supported by looking at how legislative progress on gay rights was achieved in any country where discrimination has been made illegal.

I doubt if anyone here has even heard of Boris Dittrich, but he, far more than anyone or anything else, was directly responsible for Gay Marriage getting national approval (in Holland), leading the way for other countries to follow soon after. He wasn't a particularly noted or vocal activist (he barely features in Wiki), just a very astute politician who chose his moment; when he proposed Gay Marriage in 1994 he was told by the then Dutch PM that "we don't want to seem like the world's nutcase". Four years later he held the balance in the Dutch coalition government and he made support for a Gay Marriage Bill a condition of his support for the government - three years later the bill was passed. Any politician who holds a swing vote in government, in any country, could do the same.

[Jingthing]

As stated about 1000 times on this forum, the USA consists of 50 states. The president, house, and congress could (not likely but they could) say, yes, let's recognize state same sex marriages at the national level the same as hetero marriages. But right now only a tiny number of states allow same sex marriages and each state has its OWN separate marriage legal code, so that decision would only impact a minority of American citizens, the ones in the few same sex legal marriage states. The Dutch parliamentary story is very nice but has absolutely nothing to do with the specifics of the issue in the USA and it's governmental system. Yes gay Americans could MOVE to the friendly states. Many would. I grew up with a guy whose parents had to move north because the southern state his parents were in would not allow INTERRACIAL marriages. Fixed by the supreme court as the same sex marriage will eventually be fixed.

Same sex marriage at the supreme court level is its OWN issue. The idea that it will open up a can of worms of crazy marriage ideas (such as man marrying dog or pencil) is one often promoted by the American right wing. But its not real. Each situation would be judged on its own merit. Interracial fixed. Same sex will be fixed. I really think that's the end of it as there really is NO serious lobby for anything else. So it's an empty red herring argument.

Edited October 6, 2012 by Jingthing

[LeCharivari]

Tyranny of the majority, more like.

My OPINION is that in a ideal democracy, the basic civil rights of minorities should always be protected, even hated minorities, who need this protection more than anyone. ....

The problem is WHO decides what those "basic civil rights" are.

If you take the simplistic view that as long as those involved are consenting and no-one apart from those involved is affected then you are opening a real Pandora's box - not just polygamy and polyandry, but open house on assisted suicide, an end to statutory rape, uncontrolled use of hard drugs in private; the list is endless.

If you rely on a Constitution or Bill of Rights that was written centuries ago and is inherently difficult to change or even update without the explicit approval of not just a majority but a vast majority of the people it affects then you are always going to be living under the rules of the past and by what was known then, both scientifically and technologically. That applies whether it is Madison's Bill of Rights or Sharia Law - both need regular updating and review or they are little more than a barrier to any scientific, technological and moral progress.

The "tyranny of the majority" has been evident throughout history, mainly for religious or ethnic reasons, and there are countless examples just in the last half-century: Northern Ireland, Israel, Rwanda, the Balkans, Iraq, etc, etc.

There are only two ways I can see to avoid the "tyranny of the majority" (apart from anarchy) and to protect minorities, as anything that is seen as "set in stone", like an ancient set of laws or rights, may be right for the time it is written but if it can only be kept relevant by amendment (presumably by a majority) it loses its purpose:

Dictatorship. Saddam Hussein managed to keep his country united and avoid any religious discrimination for three decades - something his "democratic" successors are totally unable to do.

Education. The more educated people are, about any issue, the less likely they probably are to be either ambivalent about it or to be purely self-interested.

I think I prefer education.

[LeCharivari]

..... The president, house, and congress could (not likely but they could) say, yes, let's recognize state same sex marriages at the national level the same as hetero marriages.

They also COULD say, yes, let's authorise state same sex marriage at the national level the same as hetero marriages - the reverse of DOMA. That DOMA WAS passed makes a nonsense of the argument that such legislation CANNOT be passed; it CAN, but the will and the support simply isn't there (and neither are politicians like Boris Dittrich).

Same sex marriage at the supreme court level is its OWN issue.

Its actually a NUMBER of very different issues: Federal benefits for those legally married under state law; California's ban on gay marriage; Arizona's ban on gay marriage; the federal court's banning California's ban; Arizona's withdrawing domestic partners' benefits.

[Jingthing]

If there is ever a time when there is a majority in the house and senate and a president with majority support for gay civil rights, it might be interesting to bring up that idea of federal marriage. I don't know if that really is possible or not. First time I heard of it. The one obvious weakness is that the states would still not have to recognize such marriages, so that would open up a legal nightmare with issues of taxation, child custody, and property at the state level, but still the federal recognition is the most important. The US being so divided now and gay rights continuing to be a wedge issue, it's hard to imagine such a majority in the those three branches in the forseeable future. I would also assume a constitutional (again: SUPREME COURT) challenge to any such law if actually passed. Also because of the MESS which I have alluded to, I just don't think that kind of solution would really be attractive. Sounds really like science fiction to me. I rate the chance of it happening that way as well under one percent, where the supreme court path is almost definite; just a matter of time.

Edited October 6, 2012 by Jingthing

[Scott]

It would appear that lessons have not been learned by some posters. If you think, even momentarily, that this sub-forum is going to allow for anti-gay needling and baiting of other posters, you are very, very wrong.

[LeCharivari]

I'm sorry if it looks as if that's what I'm doing, Scott, but my point is that the Supreme Court isn't the only option in the US and I think that the US gay lobby has taken a massive gamble by effectively putting all their eggs in one basket and gambling on a win in the Supreme Court and that they have done gays little favour by appearing to make gay marriage and gay rights one and the same thing.

If the Supreme Court rejects the gay marriage case for any reason (and it looks increasingly possible, if not probable, that that may happen) then it puts the ENTIRE gay RIGHTS issue in the US back a long way - not permanently, but certainly for a good while.

I accept 100% that the Supreme Court is the simplest, the quickest and even the most likely way to get gay marriage approved in the States, and that at the moment there is little likelihood of it being approved in any other way as apparently there isn't much likelihood of there being "a majority in the house and senate and a president with majority support for gay civil rights". I have no problem with that.

My problem with the whole approach to gay rights in the States is that the entire issue is centred (at least domestically), around only ONE very small aspect of gay rights - gay marriage - while it ignores the whole question of discrimination against gays (which is the main issue elsewhere and the core issue of the US approach to gay rights overseas).

Everywhere else in the world gay rights legislation has been part of anti-discrimination legislation, tied in with legislation banning discrimination over gender, sexual preference, ethnicity, religion, etc. Its all part of a big picture that's been ignored in the US where there is NO such gay rights legislation (except that permitting gays to serve in the US military).

Everywhere else in the world that has gay marriage (or an equivalent), that has been the icing on the cake for gay rights - the final step, once discrimination on the basis of sexual preference has been legislated against and once the general population have been educated about and accepted that such discrimination is wrong. In the US there seems to have been very little in the way of such "education" and consequently there has been equally little in the way of acceptance. While I have strong reservations about drawing parallels with the issue of racial equality, it has to be the equivalent of the US Civil Rights movement concentrating solely on getting inter-racial marriages approved while ignoring all the other aspects of racial discrimination.

Gay marriage anywhere is going to be a controversial issue - by making gay marriage the central issue of gay rights (or at least by making it LOOK that way) and by trying to get something approved which is apparently against the wishes of a majority of the population I think that the US gay lobby has done gays in the US no favours at all and that they have made not just gay marriage a "wedge issue" but that they have made being gay and gay rights a wedge issue and alienated a lot of people unnecessarily.

[Jingthing]

Oops! The most recent polls show a slim majority of the American public supports legal same sex marriage! That does not of course instantly translate to results, but there should start to be popular votes won at the state level, such as Maine and Maryland.

http://articles.nyda...upport-new-poll

Wednesday, June 06, 2012

A majority of Americans now support same-sex marriage, according to a new poll — a significant shift from attitudes toward the issue just three years ago.

As far as blaming gays for making gay rights a wedge issue exploited by the anti-gay right wing republican party, thank you very much for sharing that interesting opinion.

I suggest watching a recent t.v. show American Experience: STONEWALL for some history of how gays used to be treated in America (the lowest of the low) and yes there has been massive progress on many fronts in winning fights against discrimination at many levels. It is simply not true that the gay civil rights movement in America has only been about legalizing marriages, hasn't ever been, is not now.

http://www.pbs.org/w...onewall/player/

Edited October 7, 2012 by Jingthing

[LeCharivari]

As far as blaming gays for making gay rights a wedge issue exploited by the anti-gay right wing republican party, thank you very much for sharing that interesting opinion.

PLEASE do NOT start misquoting or misrepresenting me yet again - this was NOT what I said:

I think that the US gay lobby has done gays in the US no favours at all and that they have made not just gay marriage a "wedge issue" but that they have made being gay and gay rights a wedge issue and alienated a lot of people unnecessarily

I am "blaming" the gay LOBBY for making gay MARRIAGE the wedge issue rather than gay RIGHTS which should be the priority, affect all gays and are an undeniable basic human right (at least in the West). Gay RIGHTS affect ALL gays while Gay MARRIAGE affects comparatively few - of the many gay posters here as far as I know only ONE (me, coincidentally) has a gay marriage (or equivalent) and only two others are considering one. I expect that ALL who have gay RIGHTS use them, however, either directly or indirectly.

From a purely selfish perspective I strongly support gay marriage/CPs as it gives my partner a guaranteed index-linked pension when I die even though we got married/CP'd several years after I stopped working/paying in to the pension.

If it wasn't for that, even as a gay man in a long term, monogamous relationship, it would make very little PRACTICAL difference to me, if any, rather like "conventional" marriage - all it does is stop my natural offspring being illegitimate (offspring are rather unlikely in a gay relationship, though) and give me a few other minor benefits which I can as easily get by other means with just a little thought: inheritance tax can be avoided by joint accounts; hospital visitation rights can be secured by a living will, etc. If I needed PSYCHOLOGICAL help to feel more "equal" to my straight peers it may make a difference to me but while I understand that some do, I don't - if my straight peers don't feel my equal, that's their problem, not mine.

What would make both a practical AND a psychological difference to me would be open denial of my basic human rights on a daily basis by being openly and legitimately discriminated against - for example being rejected for a job or passed over for promotion because I was gay; being refused a double room in a hotel because I was sharing my bed with another man; being rejected by the Boy Scouts (not that high on my priority list, to be honest), etc, etc. That CAN'T happen in a country where I am protected from discrimination and my "gay rights" are protected, just as there couldn't be any such discrimination against me on the grounds of my ethnicity, religion, gender, etc. In the US, though, there are NO such laws at national level and such discrimination is STILL legal in most of the country (unless I work for the military or the Postal Service) and there has been NO progress on anti-discrimination legislation at national level since the 60's (fifty years ago).

It is simply not true that the gay civil rights movement in America has only been about legalizing marriages, hasn't ever been, is not now.

Agreed - but (as I said) that's the way it LOOKS as its the ONLY gay issue that's become a "wedge" political issue and that really is playing right into the hands of "the anti-gay right wing republican party" and the religious right (Christian, Muslim, whatever). It would be very difficult for such groups to oppose any and all other anti-discrimination legislation against gays (or ethnic groups, religions, etc) but instead of first going for anti-discrimination legislation that very, very few would openly oppose the gay lobby has gone for the one gay issue that's virtually guaranteed to be opposed by around half the US population. Even IF it somehow gets support from the Supreme Court most people will probably be so "gayed-out" by that time that nobody will be interested in debating any other gay rights issues in the US for a long time.

By pushing first for gay marriage (rather than anti-discrimination legislation), staging kiss-ins, etc, the gay LOBBY in the US could hardly have done a better job of cementing the anti-gay prejudices that a large proportion of the population have if they'd tried to - and that, to me, is doing a dis-service to American gays .

[Jingthing]

There are many ways to skin a chicken.

[LeCharivari]

There are many ways to skin a chicken.

Agreed, JT.

As Deng Xiaoping said, repeating a Sichuan proverb, *(Non-English script edited out)* 。 (or "No matter if it is a white cat or a black cat; as long as it can catch mice, it is a good cat.").

Edited October 14, 2012 by Scott
Non-English script edited out

[Jingthing]

In actuality, the U.S. gay civil rights movement is not only about same sex marriage equality. It is many pronged.

In that context this video is worth watching, but be sure to watch it until the end!

Talking about the Springfield, Missouri bill that would make discrimination on the basis of sexual orientation illegal.

Edited October 22, 2012 by Jingthing

[tombkk]

In actuality, the U.S. gay civil rights movement is not only about same sex marriage equality. It is many pronged.

In that context this video is worth watching, but be sure to watch it until the end!

Talking about the Springfield, Missouri bill that would make discrimination on the basis of sexual orientation illegal.

Wow! After the first few sentences, I was going to turn it off. My blood pressure, you know. But since you said to watch to the end, I forced myself - and I applaud this religious man for his courage.

I don‘t usually care for religious men in politics, religion does not belong there in a secular democracy.

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