Quote from: learningtolive on May 27, 2013, 10:52:55 AM
I don't believe I'm the one mistaken. He lumps them together as though they are similar. He is saying it is impossible to distinguish sodomy from other moral based sexual restrictions and that it puts all the other laws "into question". Essentially his argument is "if we make sodomy legal than all the people who want have sex with animals and their family members can do so". Now that this is decision is overturned, has that happened?
My problem in Romer V Evans is that he struck down anti discrimination laws for gays because he thought he it was preferential treatment. So, it should be okay for employers to fire gays because we don't want to give them preferential treatment. Does anyone really by that having anti discrimination laws that include homosexuality really think it favours gays? What about transgender anti discrimination laws? Is that really favouring us or realizing that we should be a protected class because of the likeliness that we have to face bigots in our everyday lives. Secondly, I don't believe everything should be done by ballot initiative or be allowed to be done so. I don't believe the rights of people who are minorities should be decided by the mob. It's like Proposition 8 where the state of California gave the people the ability to discriminate against people in their own state. And I don't care what anyone says, there is no reason not to extend marriage to same sex couples other than forcing ones religious beliefs onto others.
As I said before, Scalia was not comparing practices, but rather the rational basis for law-making in a democracy. In a republican democracy, who is to determine what is, or is not, a lawful practice? Who is, or is not, a member of a "protected class"? Those are societal decisions made by a political majority. Scalia was pointing out that the Court was intruding into political issues.
In the long history of the US Supreme Court, it has been loathe to take up political issues, as those are in the purview of the Congress. When it has wandered into such issues, there have been notable disasters (i.e.
Sandford (sic) v Dred Scott). The interpretive role of the court is to determine whether a law violates Constitutional principles.
That is what Scalia's originalism is all about. We are hard pressed to claim discrimination, against same-sex marriage for instance, on a "equal protection" basis, because when that amendment was enacted, marriage was a state issue (rather than federal) and nowhere was same-sex marriage, or gay or lesbian conduct condoned. In fact, the amendment was written to for the sole purpose of protecting newly freed slave. One can only do that by warping the meaning and original intent of the law for partisan purposes. If courts do that, it equates to anarchy, because nothing then is settled law.
As Scalia wrote in the dissent in
Romer, "Whether [sexual orientation] is or not [protectable] is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which this amendment was directed.) Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions."
It is gratifying that individual states are finding the political will to embrace that change. It would be nicer if that will was found on a federal level. But we are not quite there yet. It is not bigotry to support popular democracy.
If the laws are bad, we need to work to change them, or unseat the people who make them.
