Chief Justice Scalia’s opinion available here.
In other Scalia news:
Speaking before a packed auditorium at Chapman University, Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.“I am questioning the propriety — indeed, the sanity — of having a value-laden decision such as this made for the entire society … by unelected judges,” he said.
As is typical with Scalia, this is nothing but an anti-intellectual cop-out. Abortion, gay rights and the death penalty are not just “moral issues,” but issues of due process, equal protection and cruel and unusual punishment, respectively — all of which are most certainly “addressed in the Constitution.”
And I am far more willing to question “the propriety — indeed the sanity — of” leaving insular minorities who are often the target of naked bigotry to the whims of majoritarianism rather than to judges. I see nothing “proper or sane” about preferring blind submission to activist legislators, or activist electorates, over our founding principles of limited powers, unenumerated rights and judicial review.
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2 responses so far ↓
Link Eh Nonymous // Aug 30, 2005 at 2:12 pm
Kip,
You run the danger - indeed, the imminent risk - of my wanting to nominate you to the Supreme Court. Our disagreements over economics aside.
I think I should avoid including Scalia on Gays in my Scalia Mega-Post (now on newsstands: ep. 1, the Living Constitution) and instead ask you to collect some of your best posts, such as this one.
I do have one thing to add to any such collection: Scalia uses the word "homosexual" rather than and in preference to "gay and lesbian," let alone any of the other lgbtqabc-xyz, because he knows "they" don't like it and it's considered insulting. Much like an aged and racist white judge continuing to use the obsolete and stigmatized word "Colored" well after people no longer self-describe that way, and when everyone else has shifted their language.
Linguistically, this is significant. It's not "political correctness" to notice and accept when a group is claiming for itself a word, even a pre-existing word, and self-describing with it. It's simple observation of a fact. Scalia may not like what's being done with the word "gay," or the word "dyke," and he may never use the word "queer" except to mean strange, but his homophobic resistance to this aspect of language change is as laughable as it is obvious. Someone did a study of his opinions, and found one use of the word "gays," in a footnote. I'm going to cite to it in that issue (episode? serial? missive?) of my Mega-Post, which is Not Done Yet. Dan Perrin is the author, I believe.
Link KipEsquire // Aug 30, 2005 at 3:27 pm
"Scalia uses the word "homosexual" rather than and in preference to "gay and lesbian…"
I'm actually willing to cut him some slack on that. There was an interesting footnote in the opinion that was the topic of this blogpost of mine a few days ago:
I have, however, blasted the Washington Times for their constant use of scare quotes when referring to "homosexual 'marriage.'" That's just plain obnoxious.
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