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View Diary: Justice Scalia's fear (93 comments)

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  •  Well my opinion is (2+ / 0-)
    Recommended by:
    G2geek, sfbob

    that Scalia is so concerned about his idea of "morality" that it will preclude him from voting for same-sex marriage. But what he's done is inadvertently gave us a map to follow in order to have same sex marriage legal.

    You have a GREAT point with that sentence! I didn't even think about it. When you're in a hole you should stop digging and he didn't.

    Also, Olson and Boies are aware of this because this is their strategy in the case. They're trying to prove that Prop. 8 is unconstitutional because the Yes on 8 campaign made everyone think that gays will hurt kids and families, and the whole campaign was about animus toward gays. I don't know if they've read Scalia's dissent specifically but since they're coming at this from the animus angle they'll discover it eventually.

    I think he's at least being intellectually honest (though I don't like him and it makes me feel gross to say that) because like I wrote, back in his dissent in Romer he said that it's not rational to pass laws criminalizing homosexual sex and then turn around and offer them protections. At that point he set up the future decision in Lawrence overturning sodomy bans.

    "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

    by indiemcemopants on Fri Jan 15, 2010 at 09:16:17 PM PST

    [ Parent ]

    •  Failure to recognize the absurdity of (2+ / 0-)
      Recommended by:
      G2geek, indiemcemopants

      one's position is what characterizes these people.

      Of course, on Romer, it seems as though Scalia was setting up a rather transparent straw argument as the issue of criminalizing (or decriminalizing) homosexual conduct was not the focus of Article 2. Did Colorado still have sodomy laws (gay-specific or not) laws when Article 2 was passed? If not then wouldn't the more reasonable argument be "if you aren't going to criminalize the behavior, then why not offer protection to those who engage in it?"

      •  I just looked it up. (2+ / 0-)
        Recommended by:
        G2geek, sfbob

        Sodomy was legalized in Colorado in 1971. So you're right. I hadn't thought of it that way.

        Also I just thought of something else: do you think that Roberts' behind the scenes pro bono work on Romer would make him consider recusing himself from Perry v. Schwarzenegger if/when it reaches the Supreme Court. I just realized that could be a way for him to escape judgment on that topic.

        "Everybody lies... except POLITICIANS? House, I do believe you are a romantic."

        by indiemcemopants on Fri Jan 15, 2010 at 09:51:17 PM PST

        [ Parent ]

        •  Interesting to contemplate (2+ / 0-)
          Recommended by:
          G2geek, indiemcemopants

          I'm not sure I'd heard previously of Roberts' involvement with the Romer case though it sounds vaguely familiar. What is also interesting is that the article you linked seems to date to the time period when Roberts was being confirmed on the court. The article notes that he failed to mention his work on behalf of Romer to those who might (perhaps) not looked favorably on it.

          Clearly I don't know whether his prior experience would cause him to recuse himself from participating in Perry vs Schwartzenegger. Seems like there'd be plenty of speculation on the significance of his decision whether he were to recuse himself or not.

    •  this was inevitable based on three decisions: (0+ / 0-)

      One, Brown 1954:  "separate but equal" is not acceptable.  This leads directly to rejecting civil union as a marriage-equivalent.

      One, Griswold 1965, re. the right of married people to use contraception.  This breaks the ability of the state to shackle sex to reproduction.

      Three, Loving 1967, re. interracial marriage.  This breaks the ability of the state to limit the right to marry based upon the cultural prejudices of the majority.  

      Once those are taken as decided law, gay marriage equality necessarily follows.  

      Romer and Bowers are icing on the cake but I would say they follow from other prior decisions rather than creating new territory.  They cement in place the point that these rights can't be denied to gay Americans, but even without them, the sum of the outcomes of Brown, Griswold, and Loving points inevitably and necessarily to equality.

      Scalia is going to either have a change of heart or die a very bitter man with a place in history next to Strom Thurmond and Jesse Helms.  

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