DOMA-sticity or Has Antonin Scalia Gone Completely Barking Mad?

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  1. Before you criticize a Supreme Court Justice, maybe you should go ahead and actually look at the things he says in context.

    The “dead, dead, dead, dead,” statement was in direct reply to the legal theory of a “living constitution” which holds that amendments are essentially unnecessary, and that the courts should be free to use a “modern interpretation” of the constitution to read “modern values” onto the document. Disagreeing with the living constitutional legal theory is VERY different from believing that there cannot be amendments. The author is completely wrong in everything that follows from this fundamental mistake.

    The subsequent argument is equally ridiculous because it does not look at legalistic definitions of murder. The mens rea required for murder fundamentally recognizes morality in a way that other laws do not. The difference between manslaughter and murder is entirely about mens rea, not about consent. Likewise the difference between “murder one” and “murder two” is also all about mens rea.

    Other laws, take larceny for instance, are usually concerned about WHAT you did. The difference between petty larceny and grand larceny is what you took. This contrasts strongly with murder laws that look at WHY you did something.

    It’s clear that we don’t punish someone who kills another in a mutual bar fight the same way we punish someone who commits a premeditated act. Likewise, we usually punish someone far more stiffly if the person they murdered was a police officer than we do if they murdered an ordinary member of society.

    Both of these acts are legislated morality: we have made a moral judgement, as a society, that premeditated murder is worse than unplanned murder, and that the murder of a police officer is worse than the murder of anyone else. This is legislated morality.

    It’s easy to get worked up about denying civil rights to members of our society. DOMA and Prop 8 are both terrible pieces of legislation that need to go away.

    But we gain no credibility through editorial hack-jobs that mischaracterize our opponents and take their words out of context.

    • Michael Philp says:

      Scalia is equating something that, by definition, does harm to people, with sexual preference.
      I get your point, and I get Scalia’s, that they’re both just opinions on morality that have been passed into law, but the reduction to the absurd still doesn’t stand up as an argument in my opinion. There is a clear difference in morality between murder and sexual preference, one of them harms, the other one doesn’t. Scalia would infringe upon my rights because he believes that it’s wrong for me to be attracted to men, not just physically, but emotionally, and despite the fact that my preferences do not effect him or harm anyone in any way, shape or form. What he might as well be saying is that if the law dictated it, we could stop people from painting their house blue because some people believe the colour blue isn’t a good colour.

      • You know many communities currently have restrictions on what color you can paint your house, right?

        Many towns also have rules prohibiting buildings of more than a certain height from being built in the first place.

        We have MANY laws across states and localities that prohibit actions which arguably harm no one else. Beyond the building code, much of this country’s drug policy probably fits within that box.

        I agree with you that murder was not the best analogy for Scalia to use, but our society has already determined that “not hurting anyone” is insufficient to overturn a law. Otherwise personal-use quantities of recreational drugs would have been made legal long ago.

        That standard has been tried before and our society will not bear it. Arguing it again is not the way to win this.

    • Tom Gualtieri says:

      Your reply goes very far off-topic to attempt a relationship between two subjects which have no relationship to each other: murder and marriage. Scalia’s equation of the two is equally specious.

      I don’t know what Scalia bases his arguments against homosexuality on, but it seems that equality for consenting adults is about a simple tenet he prefers to ignore. Scalia follows the Constitution unless it makes him uncomfortable, which is the point of the essay.

      Thanks for your lecture but, based on my research, I stand by what I wrote. Nowhere in my research did I see the context of Scalia’s remarks which you attempt to point out. If you can show me proof of the context, I’ll gladly reconsider my opinion that Scalia is a hypocrite.

  2. Minor little detail: Prop 8 hasn’t “prevented legal unions between same-sex partners.” It’s prevented same-sex marriage, but domestic partnership is still legal in California.

    To be clear, I don’t think domestic partnerships are nearly good enough and certainly aren’t equality…but they are a “legal union.”

    • Tom Gualtieri says:

      Yes, the chosen language doesn’t make the distinction between marriage and domestic partnership. The clarification on my part would have been, “Prop 8 prevents the full benefit of rights shared by married couples.”

  3. Well we all know how Scalia is voting so I don’t think what Scalia says is a big deal as everybody knows what he is going. Also, there are going to be most like three other Justices who are going to vote together with Scalia. The real issue here is Anthony Kennedy. While you correctly point that he has been called a libertarian conservative, the truth is that he used to vote together with Sandra Day-O’Connor and Souter. When they left people started to speculate how he will vote as he had been, with O’Connor and Souter proven to be liberal in some issues. However, since they both left, Kennedy has consistently sided up with the conservative side. So far I don’t think he has once voted with the liberal side which makes you doubt as to his real liberal position

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