Compare And Contrast: Justice Scalia Edition

Justice Antonin Scalia, dissenting in Lawrence v. Texas, June 26, 2003:

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. See Romer, supra, at 653.

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.” Ante, at 14. It is clear from this that the 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. 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, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of 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, 530 U.S. 640 (2000).

Justice Antonin Scalia, dissenting in United States v. Windsor, exactly ten years later on June 26, 2013:

The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than todefend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that didno more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Last 5 posts by Ken White

Comments

  1. Nicholas Weaver says

    You see, Scalia is not in the legislative branch. So he may demean homosexuals, but the legislature's motives were as pure as the driven snow…

  2. says

    Justice Scalia, 2003:"Gays are icky! Ewwww!"
    Justice Scalia, 2013:"Gays are icky! Ewwww!"

    I'm comparing, but not seeing the contrast. Sorry.

  3. says

    @Lizard:

    2003: Some Americans think gays are icky, as reflected in legislation, and that should be respected.
    2013: It is unfair to assume that legislation is passed because people think gays are icky.

  4. naught_for_naught says

    the American Association of Law Schools…excludes from membership any school that refuses to ban from its job-interview facilities a law firm…that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.

    Not ready for an arithmetic problem this early, but I'm up for the challenge….let's see, -1 x -1 x -1 = -1. I think got it. The American Association of Law Schools is down any school that's down on the gays who they see as a negative. Alright.

    Now I factor in Scalia's opinion, and I get -1 x -1 x -1 x +1 = -1, again, which is to say that Scalia's down on the AALS being down on schools that want to be down on the gays (-1) but can't (+1) .

    Two things are now clear to me: (a) this arithmetic stuff is confusing, and (2) if these guys would just stop going down on the gays, things would be a lot simpler.

  5. Nicholas Weaver says

    @naught_for_naught but so many of them secretly like going down on gays. Stock in trade for wide-stance republicans.

  6. CN says

    Well, at least he's back to his old self. I was worried that he'd suffered a stroke after Maryland v. King (the DNA search case).

  7. vb_techie says

    Scalia's view, predicted almost 30 years ago:

    Dr. Peter Venkman: This [country] is headed for a disaster of biblical proportions.
    Mayor: What do you mean, "biblical"?
    Dr Ray Stantz: What he means is Old Testament, Mr. Mayor, real wrath of God type stuff.
    Dr. Peter Venkman: Exactly.
    Dr Ray Stantz: Fire and brimstone coming down from the skies! Rivers and seas boiling!
    Dr. Egon Spengler: Forty years of darkness! Earthquakes, volcanoes…
    Winston Zeddemore: The dead rising from the grave!
    Dr. Peter Venkman: Human sacrifice, dogs and cats living together… mass hysteria!
    Mayor: All right, all right! I get the point!

  8. En Passant says

    Based on Ken White at Jun 26, 2013 @8:17 am characterizations, I'll make a prediction:

    2003: Some Americans think gays are icky, as reflected in legislation, and that should be respected.

    I deny that thinking gays icky is bigotry.

    2013: It is unfair to assume that legislation is passed because people think gays are icky.

    I'm indignant and angry that anybody would say that thinking gays are icky is the basis of legislation.

    Next up:

    — How about we make a deal and let some laws say gays are just a little bit icky?

    — The republic is doomed and headed to hell in a handcart if we can't have laws that say gays are at least a little bit icky.

    — Oh, well, guess we'll just have to live in the handcart and make ourselves as comfortable as possible without laws saying gays are icky. Regnat Populi and all that.

    Yeah, it's simple minded Kubler-Ross. But it's hard to make predictions, especially about the future.

  9. mcinsand says

    Lizard, bringing up the 'icky' point, has me thinking of how this has been applied to heterosexual behavior. Let's forget the homo- versus hetero- debating. I am heterosexual, and there are some heterosexual things that I might consider 'icky,' but those are a matter between two consenting heterosexual adults, and they affect only those individuals' choices made in their pursuits of happiness. As an actual conservative, and therefore not a Republican (or Democrat), I believe in a minimal, restrained government that does not force any group's political correctness on the populace at large. Thus, Big Brother has no business sticking its nose into what I consider to be icky simply because I believe it to be icky.

  10. Josh C says

    Not quite.

    Before: "the legislature consistantly defends people's traditional rights to be assholes. "
    Now: "you can't assume that the legislature are assholes. "

    Both observations are coherent and fair. They may not be /correct/, but I dont see any disagreement.

  11. Jesse from Tulsa says

    Scalia on Voting Rights Act – the democratically elected Congress has over stepped its bounds and the stigma cast upon these communities has outlived its usefulness. Judicially it is prudent to step in.

    Scalia on DOMA – the democratically elected Congress has spoken and who are we to say it has over stepped is bounds as to weather or not the stigma cast upon homosexuality has outlived its usefulness. Judicial activism!

    – – –

    SCOTUS on DOMA: Standing is an issue but if we dismissed this appeal extensive litigation would ensue. 94 districts would have no precedent and 1000 statutes would be up in the air. "Rights and privileges of hundreds of thousands of person would be adversely affected… judicial resources and expenses of litigation for all persons [] would be immense." (see page 11 of the opinion)

    SCOTUS on PROP 8: Uhhh, standing is an issue. Constitutional rights and judicial efficiency be damned, I'm not touching this one. NO! Not gonna do it. You can't make me! California can have their gay marriage, in Oklahoma: let them eat cake.

    – – –

    Politically they are taking the baby steps approach. Not one justice has written a legal or logical argument in defense of marriage inequality (nor any other Court that I have seen). It fails the test set up in the race based marriage ban cases and other areas. The Iowa Court was spot on in its decision, it is air tight on its reasoning:
    http://www.desmoinesregister.com/assets/pdf/D213209243.PDF

    BUT… the Court is afraid of being declared a judicial activist. The Conservatives cannot be seen supporting a "liberal cause" even if there is not logical/legal support for the opposition. So avoid the merits of the issue at all costs… that way, so long as no executive wants to defend the law, it can remain the law state by state even if it is unconstitutional.

  12. Mitch says

    Bizarrely, Scalia's vote was essential for finding that the Court lacked jurisdiction to consider Perry (Prop. 8), which has the effect of reinstating Judge Walker's sweeping opinion.

    Scalia in Lawrence (2003) made it clear that was standing athwart history yelling stop at those who would "eliminat[e] the moral opprobrium that has traditionally attached to homosexual conduct." In 2013, he contends that it is not rational to conclude that those who passed DOMA did so because of the "moral opprobrium that has traditionally attached to homosexual conduct."

    If Scalia were intellectually honest in his dissent today, he would have acknowledged that DOMA was fueled by animus towards homosexuals, and that he (Scalia) believes that animus is fully justified by history.

  13. whheydt says

    Traditions of marriage during "most of human history", eh? Does he mean like Morganatic marriage, polygamy, concubinage, sibling marriage, women-are-property, or what W. S. Gilbert wrote of, "…the annual rite of marrying deceased wife's sister" (_Iolanthe_).

  14. says

    Can we take the logic of this decision and apply it to all "victimless" crimes? Are statutes prohibiting prostitution, drug use, or everyone's favorite, bestiality, not simply codifying moral opprobrium?

    For the record, I don't care what any two consenting adults do. But I do think Scalia has a small point regarding the will of the people, etc. I mean, I don't care about the will of the people, I just imagine if you carried this to its logical conclusion a lot of people, across the political spectrum, would get upset.

  15. naught_for_naught says

    @En Passant

    How about we make a deal and let some laws say gays are just a little bit icky?

    Why would you need a law to support an opinion that you have every right to hold?

  16. NI says

    I'm always happy to see that Scalia is in dissent. (Well, not always; once in a while I agree with him. But that's the way to bet.) Wouldn't want to have a whole Supreme Court full of him, but having one for entertainment value can be a good thing, so long as he's in dissent.

  17. Albert says

    Hahaha awesome. I would have had to read that at least a couple more times without your explanation in the comments, but reading it again after I couldn't stop laughing.

  18. Manatee says

    "Are statutes prohibiting prostitution, drug use, or everyone's favorite, bestiality, not simply codifying moral opprobrium?"

    So are statutes prohibiting murder, unless you find murder legally but not morally objectionable. If what you're objecting to is the invalidation of laws "codifying moral opprobrium" and having no other justification, then I would disagree with your examples.

    Prostitution prohibitions and drug restrictions are arguably justified by state power to regulate commerce (or the Commerce Clause on the federal level.) I am generally against excess regulation of commerce, but that's probably why I'm also in favor of legalizing prostitution and decriminalization of drugs.

    While I have no problem with hunting or how most of the meat industry is run, I am in favor of laws preventing needless or excess cruelty to animals, and bestiality is arguably a subset of the same. While I can't really justify them in terms of individual rights or libertarian ideals, and I acknowledge that these laws do infringe upon your property rights in the animals you own, I really can't support decriminalizing the act of skinning and raping a live cat. While I'm not one of those guys who thinks that animals have rights that are anywhere close to that of a human being, I also think that animal rights are non-zero and that animal cruelty isn't a victimless crime.

  19. says

    @Jesse from Tulsa:

    There is a very important difference between the cases WRT standing. Windsor had a federal question, namely estate taxes: there's about a third of a million dollars' worth of tax exemption riding on whether or not fed.gov recognizes New York's definition of marriage. Federal jurisdiction is clear and obvious. The Prop. 8 case (whose name escapes me at the moment) tried to create a Constitutional question, but there's nothing explicit in the Constitution on the subject (the Equal Protection clause notwithstanding), so it was murkier.

    And yes, speaking from Norman, Oklahoma sucks on that point.

  20. Albert says

    @naught_for_naught

    Yeah I did that arithmetic as well, but I get "…the American Association of Law Schools…excludes[-1] from membership any school that refuses[-1] to ban[-1]…a law firm…that does not wish to hire[-1]…a person who openly engages in homosexual conduct." => -1^4 = 1, where positive indicates support for "person[s] who openly engages in homosexual conduct".

  21. Jim Salter says

    Is it just me, or is Scalia's writing truly awful? He throws in so many run-on sentences and multiple negations that it required serious effort on my part to parse his grammar down to the point of being certain which side he was coming in on!

    (Yes, yes, I know which side it should be clear as air the man is actually on, but Ken's whole "contrast" bit had me wondering. Besides, I kind of compulsively HAVE to parse things I read fully. It's a sickness.)

  22. John says

    Not Claude Atkins: Let's leave aside the following:

    – the fact that people always seem to compare homosexuality to things like bestiality (but of course /you/ didn't mean it that way);

    – the fact that the entire point of the Constitution is to thwart the will of the people when following it would compromise the essential principles America stands for, as in the case of e.g. flag-burning laws;

    – and the fact that these days a majority of Americans actually support same-sex marriage, so the will of the people isn't even being thwarted.

    That said, bestiality is animal abuse. Not exactly victimless. The only sensible reason to ban prostitution is to make it easier to prosecute traffickers, pimps and other rapists – i.e. people perpetrating crimes with actual victims. And criminalising drug use was one of the stupidest and most expensive mistakes the government has ever made. Not a stellar argument.

    NI: If only there weren't four of him. :-(

  23. says

    Can we take the logic of this decision and apply it to all "victimless" crimes? Are statutes prohibiting prostitution, drug use, or everyone's favorite, bestiality, not simply codifying moral opprobrium?

    First two, yes. Last… I am less certain because the issue there involves a being which cannot grant consent. On the other hand, a cow doesn't grant consent to be turned into yummy, yummy, hamburgers. If I can kill something, eat it, and wear its skin, not to mention forcing it to breed with its own kind according to my schedule and needs, not its, why can't I have sex with it? (I don't WANT to, but I don't want to visit a prostitute and snort cocaine, either together or separately, either, but I don't think we need laws against them.) So, I dunno. I have a powerful emotional revulsion to the concept — but as we've seen, my squick factor isn't the determinant of what the government can do, nor should it be. If there's a sophisticated rights-based argument that lets me eat a hamburger while wearing a leather coat and taking anti-cholesterol medication developed by killing a couple thousand lab rats, but says I still can't pork a pig, I'd like to read it. If I had to choose between a moral structure that required me to give up hamburgers in order to condemn bestiality, or one that required me to accept bestiality to keep nomming on beef, I would have to choose the latter. To some extent, I am fortunately protected by the basic hypocrisy of Americans, as there's no indication of a mass movement to mainstream donkey shows.

    The fact something *is* currently criminal doesn't mean it *should* be. Rights are universal and absolute; law is not. The argument "Well, if we make sex I don't like legal, why don't we make thus-and-such legal, too?" presumes all laws must change in unison, and that if you can't remove all unjust laws, there's no point in removing any. Such as argument is self-evidently stupid.

  24. says

    @Manatee

    But a murderer is clearly infringing on the rights of others; prostitutes and pot dealers aren't. And sure, the gov't can regulate commerce. The government could once regulate marriage. But the Court decided that since the intent of that regulation was to "cause harm" to gay folks, it was invalidated. While I agree with the outcome in practice, I just wonder at the reasoning behind it. There doesn't seem to be any real principle behind it other than the social reality that most of us are OK with the gays now. And we are, and that's great. But are we making general social approval into some sort of legal principle?

    Again, FTR, I'm all for living in an anarcho-capitalist paradise, and I'm wondering if this ruling isn't a tacit admission of the virtues of libertarianism. Anyway, thanks to the proprietors and commenters for leading me further down the path of enlightenment.

  25. KRM says

    Just so I'm clear on this; Scalia 1: What "some people" may think about this or that deserves Constitutional protection. Scalia 2: What "some judges" think about what people may think is now sufficient to overturn legislation enacted by the elected representatives of those people.

    Whoa. Goodbye, separation of powers.

  26. Ryan says

    Hehe. This blog post is too funny. Ken, I work in criminal justice too (although not as counsel), and Rule #1 is: "don't piss off the judge." I think mock is probably included in that rule too. I hope, for your sake, that Justice Scalia is not a Popehat reader and that you never end up arguing a case in front of him if he is =)

  27. En Passant says

    naught_for_naught wrote Jun 26, 2013 @9:33 am:

    Why would you need a law to support an opinion that you have every right to hold?

    If by "you", you mean me, I don't need a law to support my personal opinions. But like most everyone else, I tend to like laws that do. Nor do I think gays are even a little bit icky.

    If by "you", you mean "one", then I hoped it was clear from the context that I was predicting, tongue in cheek, the next three steps in the evolution of Scalia's judicial opinions.

    Not Claude Akins wrote Jun 26, 2013 @9:32 am:

    whheydt: Don't forget complex marriage!

    Wouldn't that require recognition of foreign law? Only those simple Poles recognize complex marriage.

  28. naught_for_naught says

    @En Passant

    I would definitely like to say by "you" I meant "one," but alas, "you" merely meant "you" — the garden variety 2nd person pronoun, plain and inartful. Your comment was very clever, and I (1st person pronoun) completely wiffed on reading it.

  29. James Pope says

    If Scalia were intellectually honest

    Heh. Sorry, I can see your problem right there. I think the major problem with Scalia is that he's convinced himself that he holds a legal opinion, when in fact it's just simply a regular opinion that he tries to dress up in legal terms. That since he's a supreme court justice that what he believes must be the law, and not what he thinks must be the law because of the law.

    Honestly, will anyone be sorry when the guy falls ill and we can shed this terrible baggage in the court? Dick Cheney maybe?

  30. Dave says

    "Honestly, will anyone be sorry when the guy falls ill and we can shed this terrible baggage in the court?"

    Thomas will be saddened: Without Scalia there, how will Thomas know what to think?

  31. says

    And sure, the gov't can regulate commerce. The government could once regulate marriage. But the Court decided that since the intent of that regulation was to "cause harm" to gay folks, it was invalidated.

    The government can still regulate marriage. It just can't pass regulations that are unconstitutional. Denying equal justice under the law is unconstitutional. The government cannot pass laws whose intent is to do harm to a group solely because that group is unpopular. While the degree to which this limit has been enforced varies a lot over the centuries, that this limit is part of the law has been true since the Bill of Rights was added to the Constitution.

    Legislation that impacts the Constitution is permitted when it is "narrowly tailored" to serve a "legitimate" end. Thus, freedom of speech doesn't mean the right to shout your opinions through a bullhorn in a private neighborhood at 2 AM. Such a law would be unconstitutional if it said "You're allowed to shout 'Accept Jesus As Your Savior!' under such conditions, but not "'There is no God but Allah!'".

    I assume you see the difference.

    Government can still regulate marriage for many reasons. What the DOMA decision says is, "There's no valid reason for the Federal government to accept all of the widely varying state laws on marriage as legitimate, but not if the states allow gays to marry. The primary reason for the restriction is not to serve any legitimate government interest, but because some people, such as Justice Scalia, think gays are icky. The government does not have the right to pass legislation against a group based on real or perceived ickiness alone. Nothing about homosexuals, as a class, requires special treatment of their rights. They are neither criminals (who are often singled out in legislation) nor children (who are by definition deemed incompetent to engage in some forms of behavior), nor anything else which logically justifies special treatment."

    Through all the years of debate I've seen over gay marriage, I have not seen a single coherent, consistent, argument as to why it should be banned under United States law. "Ooo…. gay cooties!" isn't one, just for the record. "But lots of people don't like gays!" (Scalia's 2003 argument) isn't one, either. ("But we ban pedophiles, too!" says the moron in my imaginary peanut gallery. Yes, because we recognize a child is not competent to agree to sex. We can debate the degree, scope, and validity of such laws, especially when older teens are involved, but in general, laws against pedophilia have a basis besides "Ick!". If the only basis is "Ick!", the law cannot stand.)

  32. Caleb says

    Say what you will about the substantive ruling in Windsor (I for one agree with it), but the majority's jurisdictional argument was shaky at best. Scalia is right, there is no case in controversy if both parties are asking for an affirmation of a lower court's ruling. No case in controversy = no jurisdiction = case dismissed. Windsor is essentially an advisory opinion, which is outside the Court's power to issue.

  33. says

    @Lizard

    I think I hear what you're saying. If we're going to allow X (in this case, marriage) for some, we have to allow it for all (criminals and kids excepted, etc).

    Is there a legal issue in transmuting "marriage" from its historical definition to "any permanent legal relationship between two adults?" And what's our legal reason for limiting it to two? Polygamy is "icky?" (I don't share the SoCon fear of impending beast-marriage, but I do find the logic at least interesting)

  34. James Pollock says

    First off, marrying your dog doesn't necessarily imply bestiality. Sex and marriage are different things. Ask anyone who's been married long enough (rimshot. HEY-O!)

    Second, I'm willing to consider consent as a defense when the beast in question is able to testify in court on the subject.

    As for group marriage, well, no… there probably isn't a good reason to prohibit it, but allowing it would require more than just judicial (or legislative) fiat… many of the benefits of marriage boil down to general agency… the right to make legally-binding decisions for your spouse. Simply allowing gay people as well as straight people that power didn't require any of those benefits to be re-examined and re-written. What happens if wife tells doctor "do X" for husband who is currently unable to decide for himself is straightforward even if "wife" and "husband" are of the same gender. Sure, it will be desirable to clean up the language and substitute "spouse" for "husband" and "wife", but the legal effect is still clear.
    Plural marraige is a different story. If husband is medically unable to make his own decisions, and wife says "do X" but other wife says "do Y", what is doctor to do? X AND Y? Toss a coin? What if still another wife is yet to be heard from, but is currently incommunicado?
    That's why we can't just legalize plural marriage overnight.

  35. naught_for_naught says

    @Not Claude Akins

    And what's our legal reason for limiting it to two? Polygamy is "icky?"

    I had asked this very same question in other forums, and here are a few of the arguments for distinguishing between the two. There has to be some valid reason to limit 14th amendment rights to a group. Prop 8 proponents were unable to prove any real harm. Poly marriage on the other hand can be shown to have harmful effects both within the family at to society as a whole, according to what I've heard argued. The courts may also consider disruption to private and public systems that would be effected, such as insurance, the many issues that would arise in family courts such as custody in case of divorce, divorce itself, benefit programs such as food stamps and AFDC. All of those issues could be used to limit rights to poly marriage, again just paraphrasing what I've heard argued.

  36. Zak N. says

    "If there's a sophisticated rights-based argument that lets me eat a hamburger while wearing a leather coat and taking anti-cholesterol medication developed by killing a couple thousand lab rats, but says I still can't pork a pig, I'd like to read it."

    I'm gonna take a stab at this because medical ethics in research as related to animal subjects is something that I think about.

    The first concept I will use is that humans are more important than animals by a wide margin. One human life is worth many animal lives. The exact number is fuzzy, but the order of magnitude is large.

    The second concept I want to use is that any creature's rights may be overridden when the general good is sufficient. Obvious examples is your right to free association is limited when you try and form a criminal conspiracy. The exact magnitude of general good necessary to allow for over-ridding rights is debatable, but I'm going to argue that it must be much larger than the harm caused.

    So now we can articulate the good caused by eating tasty animals. Humans are omnivorous, and reasonable amounts of meat in our diet is good for us. It is just of general good for humans to be able to eat meat, and is of general good for humans to be able to have a steady supply of meat. Because humans are much more important than other animals butchery, husbandry and tanning are supportable industries. This is because their primary purpose is the enrichment of humans, not cruelty toward animals. That they are incidentally cruel is permissible insofar as that cruelty is necessary.

    The arguments for animal research and medical products is identical. Even if it looks like we are bleeding aliens in secret labs.

    However, cruelty toward animals for cruelty's sake is NOT permissible. Personal enjoyment is not a sufficient basis for causing harm. Hence, animal abuse in the forms of torture and beastiality can be banned in a principled manner.

    At first glance it may seem that recreational hunting should be banned on principle (either that, or all hunters should be forced to eat what they kill), however there is a manner in which it can be done without violating the principles above: top predators are necessary for the stability of an ecosystem. A stable ecosystem is of general good to people, who live as part of the ecosystem. Since we have eradicated many top predators other than ourselves, we need to fill that role.

    This is my first stab are articulating this argument. I'd appreciate any feedback on its structure.

  37. Tim McNeil says

    I, for one, am thankful that I understand nary a word of what Justice Antonin Scalia has written in his dissent re: Hollingsworth v. Perry.

    I highly suspect that neither does he.

  38. Tim McNeil says

    Ah shucks! I mixed up the two cases. Sorry about that. His dissent in U.S. v. Windsor.

  39. ChrisTS says

    @Dave:

    "Honestly, will anyone be sorry when the guy falls ill and we can shed this terrible baggage in the court?"

    "Thomas will be saddened: Without Scalia there, how will Thomas know what to think?"

    I dunno, Mean Old Nino has been tossing some pretty sharp barbs at Baby Clarence recently.

  40. Ken Hamer says

    I'm still not certain why people refer to him as a Justice (notwithstanding his formal title.) To me he seems no more than a political hack.

    I, with no legal training and minimal exposure to the US legal system (Canadian citizen and resident), could probably look at every case he's ever sat on, and predict with 99% or better accuracy every judgement he's made. That I could do that based on political ideology suggest to me that he doesn't often use any legal training or intellect.

  41. AlphaCentauri says

    Off-topic, but does Thomas deserve his reputation for being out of his league? I know he doesn't talk, because he is said to be self-conscious about his accent, but how is his legal writing? I tried looking up stuff where he was the sole person writing an opinion, but I'm not a lawyer and can't really judge. For instance this one:
    http://www.law.cornell.edu/supct/html/03-6696.ZD1.html
    sounds like his argument is that the president has the right to suspend habeas corpus any time he feels it is important for protecting the country, and the reasoning sounds like "he knows more about this than us, so we can't second guess him." Is it really as lame as it sounds?

  42. anne mouse says

    @AlphaCentauri:

    That was fascinating. Judged in terms of writing quality, it's excellent work: very well organized, thoroughly detailed but never boring or repetitive, and above all crystal clear about every important point. Consider that "unlearning English" is a mandatory part of most law schools (MBAs get similar "training"), and you'll understand that compared to most judicial opinions, the writing quality in this one is stellar.
    Yes, he really did say "we lack the expertise and capacity to second-guess that decision," right at the beginning and again in various ways throughout the opinion. Is that really as lame as it sounds? Yes and no. He does back it up with multiple precedents, which isn't too hard since the general trend of US history has been that Congress and the Courts fall all over themselves to help the Executive amass arbitrary power (though I and the majority feel he's overstating those precedents to some degree).
    More to the point, Thomas' position is not just that the President knows more in this particular case, it's that the courts should never try to interfere in the President's use of war powers (because… I confess I skimmed this part. I think he's concerned it would be awkward and make things difficult for the President, and wars are too important for that. Which is weird because he goes on to say that many military operations aren't actually necessary).
    Like the majority, I think Thomas hasn't really thought things through; he's misunderstanding or ignoring the intent of the Constitution and/or the practical results of the opinion he's espousing. It's the sort of position you'd expect a good lawyer to write if tasked with making this argument, and as I said it's exceptionally well written. But it's rather disappointing coming from a judge. Does that mean he's out of his depth? Probably not, it just means that he doesn't share my Constitutional priorities.

  43. says

    I think the dissent, read as a whole, is quite well written and that the quoted passages are not contradictory at all when read in proper context.

  44. says

    James Pollack, I don't think you mean that you would consider consent in the case of a 2-year-old baby human, but that is how your sentence reads. I understand that you may have just thrown that in off-the-cuff, so if that's true would you mind restating it?

  45. neverjaunty says

    @Mitch: Scalia's vote in Hollingsworth is not bizarre at all when you consider the precedent – there is a great deal of "no, hippie do-gooder, being sad because somebody is wounding Mother Earth does not constitute an actionable injury." Any other result would have expanded the standing doctrine, and there are an awful lot of liberal activist groups that would have jumped right on that.

    This is apparent if you read the opinion carefully, with its firm caution that a state cannot "issue tickets" to sue in federal court. In other words, finding standing for Proposition 8 supporters would have created a California-sized loophole for activist groups wanting to, say, sue in federal court to Save the Whales or the redwoods or the spotted owl or whatever.

  46. Nigel Declan says

    Hey, Ken, lay off Scalia! It takes an incredibly fine eye to determine not only which laws that literally discriminate against people based on homosexuality and homosexual conduct are intended as discriminatory and which are not. Since it is Scalia, of course, he can do so with absolute authority while simultaneously explaining how such distinctions are exactly what George Washington both anticipated and intended (Washington, et al., were used their little-known gift of "Founders' Foresight", which gave them not only the ability to perfectly anticipate every Constitutional issue that will ever arise and to hold strong clear opinions on matters that only come into existence hundreds of years in the future, but to clearly and unequivocally communicate these positions through the Constitution using strict-constructionist secret code that only Scalia is capable of understanding, again something that "Founders' Foresight" perfectly anticipated and intended). The better question is how these other idiots on the bench, who lack the brainpower to understand Scalia's brilliance, are still alive, as their tiny minds would surely have forgotten how to breathe while they were using their entire intellects to rationalize their clear defiance of the Constitution.

  47. Nigel Declan says

    @MOG: When the Dems signed DOMA, it was because they "had to", what with the Republicans controlling Congress and a very important agenda which required DOMA as a "compromise". Now, the Dems would have you believe, they realize that gay rights are all-important and they would have repealed it legislatively, but couldn't, what with the Republicans controlling the House and having the filibuster in the Senate. What about Obama's first 2 years, you ask? Well, Obamacare was so important and took so long and who knew Ted Kennedy would die and Martha Coakley would be such a terrible candidate and .

  48. AlphaCentauri says

    No, I think a lot of people really have changed their minds. Even people who didn't have a problem with homosexuals having homosexual unions thought it was opening a major can of worms to just expand the mish-mash of marriage laws to them, many of which arose in an age when the woman would be getting pregnant immediately and continuously and therefore wouldn't be earning much money. (Think of the tax filing status laws.) As more venues have permitted gay marriage without a lot of problems ensuing, it doesn't look like so much of a potential problem.

    It's like being against planting a new type of shrub in your yard because you don't know if it will survive your winters, then seeing your neighbor's shrub thriving.

  49. adam says

    No, I do not think that "a lifestyle that they believe to be immoral and destructive" equates to having "the purpose to disparage, injure, degrade, demean, and humiliate our fellow human beings". The former is sometimes acceptable (i.e. to think that certain behaviors are immoral and destructive). The latter is something different and, in my mind, never acceptable. And I certainly don't think either of these simply boil down to thinking that something or someone is "icky".

    Whether or not he makes a convincing argument, I don't believe in these two opinions Scalia is being self-contradictory nor illogical.

    It makes for good discussion, Ken, and I thank you for raising the point, but I think your comment over-simplifies and mischaracterizes what Scalia is saying.

    On a different note, I hope we don't as a society feel that our sexual moral standards (or perhaps those held by people I disagree with) are based on nothing more than what a person feels is or is not "icky". Let's please give ourselves (and yes, even people we don't agree with) more credit than that.

  50. James Pollock says

    "what i can't completely understand is the … "it was icky then, but not icky now" flip flop of those who voted for DOMA."

    Well, for starters, it was actually "my constituents thought it was icky then, but they don't think it's icky now", and that's partly because of demographic change… generally, older voters tend to break against same-sex marriage, and younger voters tend to break for it. That means that over time, as the older voters die off and are replaced by new ones just turning 18, the number of voters who support same-sex marriage is increasing.
    What I was unclear on then, and remain unclear on now, is how federal legislation can override the "full faith and credit" requirement of the states. If two persons of the same gender are lawfully married in a state that permits this, then move to a state that does not permit persons of the same gender to marry, their marriage should move with them, because even if that second state won't allow people to marry, they have to recognize the official acts of the first state.

  51. James Pollock says

    "I don't think you mean that you would consider consent in the case of a 2-year-old baby human, but that is how your sentence reads."

    I'd say read it again… unless you think 2-year-old baby humans are qualified to testify regarding questions of sexual consent. Now, had that been a typo for "12-year-old adolescent human", I'd say yes, consent ought to be considered as a defense, on the grounds that a VERY small number of 12-year-olds are actually (but not legally) capable of giving meaningful consent AND could articulate that consent in court.

  52. David Schwartz says

    Manatee: I don't see how you can argue that the State can ban prostitution under its power to regulate commerce but not same sex marriage. In fact, prostitution is even more personal than marriage because sex is a key element of the offense while in the case of banning marriage, it's not intercourse or cohabitation that's being banned but the official recognition of the relationship from which commercial consequences flow. If this is not so, under what power do States recognize marriages?

  53. AlphaCentauri says

    It's going to get real interesting … what is the state's role in regulating consanguinous marriages among people who can't biologically reproduce together? How about states where a husband is legally a child's father, even if the mother got impregnated by a paramour — can a married gay woman get pregnant without worrying about custody issues with the father? Can a pregnant woman from an abusive boyfriend marry a woman and eliminate the father's right to custody if she chooses to give up the child for adoption? It will all have to be decided case by case, state by state, because so many of the marriage laws we have are based on the assumption of "love-> marriage -> baby carriage" being inevitable.

  54. James Pollock says

    "How about states where a husband is legally a child's father, even if the mother got impregnated by a paramour — can a married gay woman get pregnant without worrying about custody issues with the father?"
    Presumption of legitimacy was actually a protection for the child when it was enacted. Today, I believe the tendency is to split the parental rights three ways instead of two… granting the mother and her husband parental rights, but also granting parental rights to the biological father if it's contested and proven that he IS the biological father (having parental rights and being able to win a custody dispute are different things) So, I don't think that marrying someone cuts off the possibillity of parental rights in the biological father.

    "Can a pregnant woman from an abusive boyfriend marry a woman and eliminate the father's right to custody if she chooses to give up the child for adoption?"
    No, but showing abuse should do the trick, married to someone or not.

  55. says

    It nice to see how he's grown intellectually over the past 10 years! Just think where he'll be 10 years from now.

  56. babaganusz says

    Let's please give ourselves (and yes, even people we don't agree with) more credit than that.

    they can begin to earn credit by coming up with talking points more sensible than scripture on Sodom, and less oblivious than linking malaise/natural disasters/etc. to Bog's displeasure over Permissive Society. any you would recommend?

  57. Anony Mouse says

    "I know he doesn't talk, because he is said to be self-conscious about his accent"

    I thought his other reason was because he wanted to actually listen to what the people arguing are actually saying, instead of interrupting every five seconds.

  58. AlphaCentauri says

    I thought his other reason was because he wanted to actually listen to what the people arguing are actually saying, instead of interrupting every five seconds.

    IANAL, but my impression was that the justices had already spent plenty of time absorbing the ideas each side had presented in their written briefs, and that the oral arguments were an opportunity for just that, great legal minds hashing out all the possible ramifications of the question at hand. If he never asks a question and just listens to other people's questions and answers, it gives the impression he has nothing unique to contribute to that process.
    http://en.wikipedia.org/wiki/Clarence_Thomas#Early_life_and_education
    He apparently finds affirmative action offensive because his Yale law degree wasn't taken seriously. He said when he looked for jobs, he was "asked pointed questions, unsubtly suggesting that they doubted [he] was as smart as [his] grades indicated." But being asked pointed questions and thinking on your feet is part of being an attorney. I can certainly imagine a law partner being fairly confrontational with any job applicant, to see how they perform.

  59. says

    "I can certainly imagine a law partner being fairly confrontational with any job applicant, to see how they perform."

    Yes, although it has to be said that doing so with open racism is probably not generally accepted practice.

  60. AlphaCentauri says

    You could conclude they were doubting it because he is Black, or you could wonder if they were doubting it because he was minimally communicative during the interview. Lots of frat boys have grades that are higher than they deserve due to cheating, for instance, and an oral interview often makes that clear.

  61. James Pollock says

    I have a question for anyone who has read Scalia's dissent in Lawrence recently. I read in another media that in his dissent in Lawrence, Scalia scolds the majority among other things with the complaint that under the majority's holding, there is no reason to prevent gay marriage. Yet, on the subject of gay marriage, he dissents. Is this not a case of demonstrable judicial activism? If precedent says that there's no reason to prevent gays from marrying, shouldn't a Justice who follows the law rather than his own conscience hold that there's no reason to prevent gays from marrying?

  62. says

    Ken, I'd note one difference: even Scalia no longer seems to think that it's socially acceptable to be openly homophobic.

    Just like racists no longer feel comfortable saying racist things without the preface "I'm not racist, but".

    At least that much is a nice improvement…

    (Disclaimer: I operate gayhomophobe.com)

Trackbacks