: Justice Scalia’s logic in his defense of the Texas sodomy law has been rolling around inside me like a botulistic oyster. He argues that by overturning this law, all laws based on morality are up for grabs. He quotes the Bowers decision: “…if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” OK, let’s carry that to its logical end. Laws on murder, rape, theft, assault, hate are all based on morality — all based on society’s shared view that these things are wrong, that they are immoral and should be illegal. Thus, Scalia is putting homosexuality and sodomy in the same moral bucket with murder, rape, theft, assault, and hate. He says that if you don’t forbid homosexuality, all other moral decisions are baseless. In what universe? In what church? In what nation? That is patently offensive and downright stupid.

: Atrios says:

I have to admit I

  • It’s also a victory for those who believe that the citizens of Texas are incapable of ruling their own state.

  • Lex

    Also a victory for North Carolina married couples, of whom up to 80% by conservative estimate were guilty, at least until yesterday, of having committed a felony punishable by up to 10 years in prison.
    Laws like that create disrespect for law in general.

  • balbulican

    There are are moral principles whose intention is to prevent individuals from harming or exploiting each other or society, and those are appropriately reflected in a society’s laws.
    Then there are moral “principles” that are simply pronouncements of an ethical world view, and address behaviours without negative consequences for individuals or society. Prohibitions against consensual sexual behaviour between adults fall into this latter category, and should not be subject to legislation. As one of our late Prime Ministers said, “The state has no business in the bedrooms of the nation.”

  • John Thacker

    I don’t think that you’re reading it correctly at all. In fact, your confused statement essentially agrees with Scalia, much more than I do.
    The majority opinion (or perhaps O’Connor’s concurrence, or both, I need to check) says that moral reasons alone are not a sufficient rational basis for a law. Scalia is taking issue with that comment. He’s certainly not saying that if you don’t ban homosexuality that you can’t have any moral decision. However, he is saying that if you overturn a ban on homosexuality because moral disapproval is not by itself a rational basis for a making something illegal, then by that precedent many other laws, now considered settled, would be overturned, since they too rest on moral disapproval.
    A counter-argument would be to posit that other laws, like those against murder, rape, theft, assault, etc. have a rational basis beyond that of simple moral disapproval. That is, that economic or scientific theory (for example) can give good reasons for banning such practices outside of simple morality.
    Justice Scalia is putting homosexuality in the same category as murder no more than you yourself are– both of you are claiming that laws against murder and homosexuality are both based on views of shared morality. (Though people can have one view but not another.)
    Repealing a law against homosexuality because the shared moral vision has changed does not in any way threaten laws against murder, and Justice Scalia would join you in saying so. (Justice Thomas specifically insults the sodomy law and stresses that he would vote for its repeal in his separate dissent.) However, there is, I think, a real concern that enunciating a general principle that moral disapproval is an insufficient rational basis to pass a law could threaten many other laws, now considered settled, and perhaps even including murder.
    I think that murder has a pragmatic basis other than simple moral disapproval, and presumably so does Scalia. Other laws, however, certainly could be in danger. You seem to believe that laws against murder, rape, theft, and assault “represent essentially moral choices” in Scalia’s phrase. Therefore, you must agree that if precedent is set that laws whose only basis is an essentially moral choice are unsustainable, then the aforementioned laws are at risk.
    I disagree, because I think that in the case of murder, rape, theft, and assault, one can make pragmatic arguments as well. However, it is a bit disquieting to say that no laws can be substained by shared moral views at all.

  • Tom P.

    Thank you for this post!

  • Tom P.

    Whoever argues that murder has to do with morality is an IDIOT.
    Having consentual sex with another person hurts no one.
    Murdering someone, last I checked, does.

  • Thank you John Thacker.
    You have apparently read the Scalia dissent I have and come to the same conclusion I have.
    Scalia doesn’t really state what his conclusion on homosexual sex is. His problems with decision by the court have to do with the fact that he thinks they have taken sides in a non-constitutional political debate, and that they have stated that moral approbation is not a rational reason for a law. Both of these objections are valid IMHO.
    Scalia sketches out the opposing point of view only to show that there is one. He himself seems not to side with one or the other. His explicit statements are ignored.
    And now we have the media trumpeting this as a decision affirming gay rights. It is not. It is an extension of the privacy doctrine.

  • Puce

    Sheep good?

  • The court made the right decision. Our founding fathers meant to create a government who didn’t enforce morality. That’s what the “separation of church and state” is all about.
    Americans wonder at the “Islamists” enforcing women wearing the garb, but then don’t wonder about abortion restrictions or homo restrictions.
    That’s about morality and it’s not the business of the American government. Read the sections about “shall make no law” and “shall not be infringed” and “shall not be violated”. Don’t the moralists understand? That’s not the job of the government.

  • I’m neither a bigot nor a fundamentalist, but I think Scalia had a good point, and that Clarence Thomas’ dissent was even better.
    I find the people raving about the evil Scalia not thinking that this was a Constitutional issue really irksome. You can’t have a principled objection that the court shouldn’t meddle in these affairs, you can’t believe that contentious social issues should be settled democratically? Come on now. I’m glad these laws are good too, but I thought that Scalia and Thomas both made good points in their dissent.
    Why be so nasty about it?

  • daniel winters

    I like the part about “fundamentalist” – ohhhh such a nasty name to be called. Does that make me like a brother of Bin-san or Saddam-san? Or perhaps a brother of George, Thomas, and Ben-san of 2 centuries ago? Some one hold down their grave stones when they roll over on hearing this one.

  • Diana

    In principle, you are right. And you know what? It doesn’t matter. This decision proves that the Supreme Court’s guise of as lofty, above-it-all disembodied souls that decides legal issues without regard to politics, as opposed to a court of nine contentious contemporaries who reflect and indeed personify the passions of their times, is a myth.
    But you knew that, didn’t you?
    (Plessy v. Ferguson, anyone? Dred Scott….Brown…come on, guys!)

  • I would be gladly willing to argue that laws based solely on moral disapproval, absent any practical state interest, should be questioned. Take for example, murder. It’s not illegal simply because we believe murder to be wrong, but because there is a compelling state interest to remove murderers from society.
    The same is true of rape, theft, assault, etc. There is absolutely no compelling state interest for the criminalization of consensual sexual behavior of any kind. I would argue similarly against hate crime legislation, which to mee seem suspect. Aside from the impracticality of such laws, the state has no compelling state interest to eliminate those who hate others from society. It has a compelling state interest to remove murderers, whether or not they committed such acts because of the color of the victim’s skin or because the victim didn’t hand over their wallet. Of course, they already have laws against that.

  • Diana

    There is absolutely no compelling state interest for the criminalization of consensual sexual behavior of any kind.
    Brad, read this sentence again and think about it. Because it’s wrong. I can think of a lot of cases of consensual sex that are wrong. Can anyone else?
    (PS I think the court was correct to strike down the sodomy law. But this sentence is a textbook case of the phrase “perfectly silly.”)

  • balbulican

    Diana, what if you amend the phrase to read “consensual sexual behaviour between adults”?

  • Diana

    Not between first degree relatives, even if consenting.

  • Diana,
    I am of the opinion that children in a sexually abusive or sexually intimidating position are incapable of giving genuine consent, and thus I do not include them in the statement “consensual sexual behavior.” Nonetheless, I’ll gladly amend that to be between adults only.
    As for consensual sexual activity between first-degree relatives, there’s an argument to be made but that serves more as a debatable exception than to disprove the rule.