Scalia's Dissent in Lawrence v. Texas

[304065]

This is a thread about the CONSTITUTIONAL implications of the Supreme Court's overturning of the Texas anti-sodomy law.
Justice Scalia dissented, as follows:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196.

No less a personality than Robert Bork once said, "Lawyers live on a slippery slope. We are not expected to ski it to the bottom."
And yet, that happens daily.

A good place to start is, where does it end?

An historical example: Brigham Young, founder of The Church of Jesus Christ of Latter Day Saints, (aka the Mormon Church) was a proponent and practitioner of polygamy. In 1857, the US Army was dispatched to establish control over Utah due to the practice of polygamy. Brigham Young was tried for polygamy in 1871. The Church renounced the practice in 1890 and Utah was admitted to the Union shortly thereafter.

Isn't the prohibition of polygamy a law based on moral choices?

What about the marriage practices of other cultures?

You can leave home the invective, the homophobia-calling and the dogma for this thread: what is intended is a mature discussion about whether laws should be based on moral principles, and the possible consequences if they are not.

[widebody911]

Laws involving moral principles should only exist if the action negatively affects a non-consenting 3rd party in a tangble manner.

2 guys gettin' it on doesn't affect anyone else; whether or not it assaults your moral sensitivites is irrelevant. Therefore it should not be subject to legislation.

Child molestation does tangibly affect a non-consenting 3rd party, and thus should be legislated.

These matters are atually very simple. They only get complicated when others try to impose what they think is "right" on others.

[nostatic]

What Thom said. "Social morality" has everything to do with how your actions effect *other* people. We have lines in the sand for when a child moves to adulthood (sometimes fuzzy, but there is a distinction). Once someone is an adult, assuming they are "competent", what they do in the privacy of their home with other consenting adults should be of no interest to the courts as long as it does not effect others.

Say for instance that I don't think people should be able to overeat and become obese. And I could argue that their being obese has a direct effect on me (higher health care costs). Should I be able to legislate their behavior? And doesn't the bible comment on sloth and overindulgence? So I would have a moral arguement too, no?

[304065]

what they do in the privacy of their home with other consenting adults should be of no interest to the courts as long as it does not effect others

Guys, I think the issue is significantly more complex than that. Our fabric of laws is full of prohibitions on the behavior of consenting adults.

What about the most common form of prohibition of the sexual behavior of consenting adults, laws against prostitution? Such laws have been repeatedly upheld as being in the interest of public morals, health and welfare.

What about physician-assisted suicide? What about the prohibition of suicide, period?

Thom, following your reasoning, the guy in Germany who posted a request on the internet to be murdered and eaten, and was, well, that would just fall within the context of behavior between consenting persons. Here's the point: ALL laws are based on moral judgments and are intended to encourage or discourage certain types of behavior that society finds vaulable or loathsome. Laws protecting property, your life, regulating business conduct, etc,. are all based on conceptions of "public policy" that basically say you CANNOT just do whatever the hell you want, even if it only harms you.

Now, I know the liberterian viewpoint is that such laws tend to unreasonably limit individual freedom,, but the contrary view is that they tend to facilitate the exercise of individual freedom by making the cost of participating lower for everybody. E.g., in a polygamous household, where all the spouses depend on the primary wage earner for support, something bad happening to the primary wage earner tends to have a cascading negative effect vs. a smaller family.

Nostatic, I'll get to your point about obesity in a separate, but related thread.

[nostatic]

Originally posted by john_cramer
Guys, I think the issue is significantly more complex than that. Our fabric of laws is full of prohibitions on the behavior of consenting adults.

What about the most common form of prohibition of the sexual behavior of consenting adults, laws against prostitution? Such laws have been repeatedly upheld as being in the interest of public morals, health and welfare.

It can be argued that prostitution harms the participants (ie it is not a "victimless" crime). Therefore it doesn't qualify as "no negative effect".

The guy killing/eating the other guy again doesn't exactly qualify as "not harming" the participants.

Laws concerning property are also focused on protecting an individual's interests. I cannot do "whatever I want" and go destroy someone's stuff becuase it negatively effects them.

How does sodomy between consenting adults rise to any of these examples?

[djmcmath]

Some other laws that only affect me -- seatbelts. Prescription drugs. Illegal drugs (coke, heroine, etc.). Why can't I do pot in the privacy of my own home? Why can't I sell pot to a consenting 2nd party?

Just to be contrary, I'll disagree with you, John: All laws are not based on moral judgements. Laws are based on what society finds acceptable or unacceptable. Morals are, ultimately, irrelevant. All that matters is whether or not my actions are convenient or annoying to those around me.

Dan

[nostatic]

Originally posted by djmcmath
Some other laws that only affect me -- seatbelts. Prescription drugs. Illegal drugs (coke, heroine, etc.). Why can't I do pot in the privacy of my own home? Why can't I sell pot to a consenting 2nd party?

There are laws that exist to "protect" people from themselves. As for the pot, well I think those laws are wrong, so I can't argue that one (even though I don't partake these days). There is the arguement that you have to protect people from themselves becuase if you don't they will become a burden to society, and in fact effect others. No seat belt give you increased medical costs, drug addiction gives increased costs to society, etc.

So if you want to argue that you have to outlaw sodomy to protect people from themselves, or becoming raging sodomy addicts to pillage society, then that's another thing

[widebody911]

I say repeal seatbelt and helmet laws - along with the stipulation that if you're injured while not wearing them, you're on your own - your insurance won't cover you. Let the hawg riders (biggest opponents of helmet laws) roam free and helmetless, and their families get to take care of them on their own dime in their subsequent vegetative state.

As an aside, my dad wouldn't allow me to wear a seat belt when I was a kid - I got smacked many times for putting one on.

[Moneyguy1]

While you are at it, eliminate speed limits and driving only on the right hand side of the road....

We might actually strengthen the gene pool after a while.

[304065]

Therefore it doesn't qualify as "no negative effect".

So now we've added, "and doesn't have a negative effect" to your paradigm.

How does prostitution harm the participants? Are they economically coerced by a paternalistic society into prostitution? Are they addicted to chemicals and have no other means of supporting their life-threatening addiction? Are either of those things a direct result of the exchange of sex for money, or are they factors that contribute to the need to exchange sex for money in the first place?

But suppose we grant you that it's harmful, therefore, prohibitable. And suppose we grant you further that the kind of behavior contemplated by the Texas anti-sodomy statute is not harmful when conducted among consenting persons.

Couldn't one then apply the same argument to state laws prohibiting bigamy or incest?

The answer to that question is entirely Scalia's point, in my view. Arbitrary decisions about constitutionally permissible exercises of personal freedom, based on whatever happens to be in favor at the moment, are bad, simply because you end up with a highly flexible concept of what "liberty" stands for. It's even worse when you have judicial activism changing the definition every few years (and I mean activism of both the RIGHT and the LEFT)

All laws are not based on moral judgements. Laws are based on what society finds acceptable or unacceptable. Morals are, ultimately, irrelevant. All that matters is whether or not my actions are convenient or annoying to those around me.

Uhh, that's cognitive noise, there. "What 'society' finds acceptable or unacceptable" is either so vague as to be without meaning, or you've just DEFINED morality for us.

Thom and Moneyguy, all will be revealed in the new thread about the implied consent doctrine and the implications of socialized medicine for the exercise of personal freedom. You guys are going to like that one.

[nostatic]

incest leads to genetic (medical) issues. Bigamy is more blurred, but it can be argued that it leads to psychologically harmful situations (same for prostitution).

Of course we're on the slippery slope...but by definition that is what the law is for, right? To split hairs.

[turbo6bar]

nostatic, if we have seat belt laws to "protect" people from themselves and save society a burden, are you also in favor of obesity laws? Wouldn't a pot smoker become a burden on society?

Great thread john_cramer.
Jürgen

[nostatic]

Originally posted by turbo6bar
nostatic, if we have seat belt laws to "protect" people from themselves and save society a burden, are you also in favor of obesity laws? Wouldn't a pot smoker become a burden on society?

Great thread john_cramer.
Jürgen

I didn't say I necessrily agree with "protection" laws, but I'll argue that point for the sake of this discussion. Yes, I would be in favor of obesity laws. Yes, a pot smoker can become a burden on society, just as alcoholics do. So given the roughly equal probability for abuse of each, I'd say we either make both illegal, or put pot on equal footing with booze. Your choice.

And can you imagine the money the government could make from legal pot? Combine DEA savings with taxes....

[turbo6bar]

Originally posted by nostatic
And can you imagine the money the government could make from legal pot? Combine DEA savings with taxes....

No argument from me. I'm for great freedoms, as long as individuals are held responsible for their mistakes.

[djmcmath]

Originally posted by john_cramer
Uhh, that's cognitive noise, there. "What 'society' finds acceptable or unacceptable" is either so vague as to be without meaning, or you've just DEFINED morality for us.

Well, for the sake of argument, I'm a moral relativist, so I'll push this point. You see, 50 years ago, it was against laws all over the South to marry against your race. If morals defined the laws, then the morals have changed (as indicated by the change of law), and there is no objective unchanging standard for morals. Therefore, laws are not defined by morals, but rather by what society finds acceptable or unacceptable. Morals don't even really enter the argument. If you wanted to, you could say that that society found inter-racial marriage to be "immoral," even. Ultimately, the highest form of life is man -- there is no force outside of humanity who determines what is or is not moral, so as humanity's ideas of morality change, laws simply reflect that, and ultimately have no relationship to anything you might refer to as an objective standard of morality.

How's that? I'm doing my best to pass for a postmodern humanist.

Dan

[350HP930]

I would say that the laws protecting you from yourself should also be elimintated. Riding motorcycles, sky diving and mountain climbing are dangerous activities, should they also be made illegal?

I would never smoke crack, pay for sex, marry more than one woman or kill myself but if other people think its right for them they should be free to do so.

The paternalistic state is the slippery slope to cultural totalitarianism.

Whether its anti-drug, prostitution or poligamy laws, they all need to go the way of the sodomy laws.

Just think, in many states even consentual oral sex between a man and a woman is a felony.

[speeder]

Just curious, (from the original post), which states outlaw masturbation??

What do they do if they catch the guy pulling it in the brickhouse? Add on a couple more years? That could get expensive for the state.

[speeder]

Originally posted by 350HP930
I would never smoke crack, pay for sex, marry more than one woman or kill myself but if other people think its right for them they should be free to do so.

Killing yourself should definitely be a felony.

[H.G.P.]

The means/ workings of change are corrupt. That the judicial branch has breached the Law/Constitution. It is no longer an "interpreter" of plain legislative fact, whether labeled as a "moral" or not.

[350HP930]

Originally posted by SoCal911SC
True story: My next door neighbor called one day and said "Come by and meet Justice Scalia!"

If I was you I would have promptly gone over and given the old crooked bastard a swift kick in the nuts.