Friday, October 27, 2006

Lawrence v. Texas dissent

I wrote about the death of Tyron Garner on my blog on October 26, 2006.  He was involved in the Supreme Court case, Lawrence v. Texas, in which the Supreme Court majority incorrectly and immorally ruled that laws against homosexual behavior are unconstitutional.  Tonight, I am going to quote a portion of the dissent (disagreement with the majority opinion) of Justice Antonin Scalia.  He was one of the three Justices who actually understood the Constitution in this instance and did not rely upon their own opinion to reach a judicial decision.

“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.  I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.’  It is clear from this that the Court has taken sides in the culture war (my underline), departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.  Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.  They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.  The Court views it as ‘discrimination’ which it is the function of our judgments to deter.  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; that proposals to ban such ‘discrimination’ under Title VII have repeatedly been rejected by Congress … that in some cases such ‘discrimination’ is mandated by federal statue, see 10 U.S.C.   654(b)(1) (mandating discharge from the armed forces any service member who engages in or intends to engage in homosexual acts); and that in some cases such ‘discrimination’ is a constitutional right, see Boy Scouts of America v. Dale, (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.  Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts.  But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.  (This statement is extremely important and is part of the reason why the Supreme Court has become unconstitutional in approach since the Court is trying to become THE power source for our system.  Nine people are NOT supposes to be the policy making body for our society.  THEY ARE NOT DEMOCRATIC NOR ARE THEY ELECTED—IT IS A COURTOCRACY!!!  It is so important I will repeat it since at least one Justice seems to understand the true role of the Court: “imposing one’s views in absence of democratic majority will is something else.”  As the saying goes, the majority of the Supreme Court in the past just doesn’t get it—my addition)  I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so.  What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new ‘constitutional right’ by a Court that is impatient of democratic change.  It is indeed true that ‘later generations can see that laws once thought necessary and proper in fact serve only to oppress,’; and when that happens, later generations can repeal those laws.  But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.  (To repeat that important statement: ‘BUT IT IS THE PREMISE OF OUR SYSTEM (i.e. a democracy—my addition) THAT THOSE JUDGMENTS ARE TO BE MADE BY THE PEOPLE, AND NOT IMPOSED BY A GOVERNING CASTE THAT KNOWS BEST.’  I would add: not imposed by a governing caste (i.e. the Court) that THINKS it knows best.)


One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.  The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly.  The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal)….  At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’  Do not believe it.  (Repeating:  ‘DO NOT BELIEVE IT.’—my addition)  More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relations, child rearing, and education,’ and then declares that ‘[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’ (emphasis added).  Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.  If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct,; and if, as the Court coos (casting aside all pretense of neutrality), ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring’; what justification could their possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution,’ ibid.?  (In short, if homosexual behavior is protected by the Constitution and is a perceived Constitutional right, how can anyone logically deny homosexuals the right to marry?  Only an irrational person would proclaim that one is legal but the other can not occur.—my addition)  Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.  This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.  Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a ‘fundamental right’ (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws.  I dissent.” (“Lawrence v. Texas,” Microsoft ® Encarta ® 2007 [DVD]. Redmond, Wa: Microsoft Corporation, 2006.)


“Do not be deceived: God cannot be mocked.  A man reaps what he sows.  The one who sows to please his sinful nature, from that nature will reap destruction; the one who sows to please the Spirit, from the Spirit will reap eternal life.” Galatians 6:7-8 (NIV)

Do not be deceived by the libertines in our society.  The same GODLY principle of sowing for individuals also applies to a nation.  If the United States sows according to our sinful nature, we will ultimately reap destruction.  IT IS A GOD ESTABLISHED PRINCIPLE.  WE REAP WHAT WE SOW!!!            


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