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Fun with Scalia

For fun, I've taken portions of Justice Scalia's dissenting opinion in Lawrence v. Texas and replaced references to homosexuality with... well, you'll see:

Today's opinion is the product of a Court... that has largely signed on to the so-called Jewish agenda, by which I mean the agenda promoted by some Jewish activists directed at eliminating the moral opprobrium that has traditionally attached to Judaism...

Many Americans do not want persons who openly engage in Judaism 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...

Let me be clear that I have nothing against Jews, or any other group, promoting their agenda through normal democratic means. Social perceptions of religious 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... But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize acts of Jewish worship -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so.

Now, of course, Scalia was actually talking about homosexuality, not Judaism. But what, exactly, is the difference? Many people believe that homosexuality is a genetic trait, as being Jewish is for people born of Jewish parents. On the other hand, some people believe that homosexuality is an acquired trait, as being Jewish is for people who have converted to Judaism.

One of the basic thrusts of Scalia's dissent is that regulation of sexual conduct between consenting adults is a matter best left to the people to decide via the democratic process:

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.
Scalia is flat-out wrong. A fundamental right is a fundamental right, even if a majority of citizens might wish to take it away from a minority.

Put another way, is Scalia saying that were he to find himself sitting on the Supreme Court prior to 1870, when the Fifteenth Amendment ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude") was passed, that he would vote to uphold slavery, even believing (as he presumably does) that it is intrinsically wrong, simply because to vote otherwise would be to impose the views of a "governing caste" on the people? If so, then he seems to me to be abdicating judicial responsibility in the name of "traditional democratic action." If not, then I can think of no other reason for the difference except for a personal distaste for homosexuality on his part.


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