How Justice Antonin Scalia Is Imposing Catholic Morality in the Supreme Court… and Getting Away With It

Supreme Court Justice Antonin Scalia is notorious for not-so-subtly making legal decisions based on his irrelevant personal and religious beliefs. This week, one LGBT-interest columnist says his twisted understanding of how the law works doesn’t just hurt American citizens — it also makes him look ignorant.

Bridgette P. LaVictoire, of the Vermont-based LGBTQ news site Lez Get Real, says the justice applies the Constitution based on its meaning at the time it was written — a legal principle known as “originalism” — to impose his personal standards of Catholic morality on the country. She writes:

Justice Scalia [spoke] before a gathering of the Utah State Bar Association at Westin Resort in Snowmass Village earlier this month. During his speech, Scalia made his usual argument that he believes “that texts should be read to mean what they were understood to mean when they were adopted.” Which means that he should have voted against declaring corporations people (Citizens United), for striking down DOMA (Windsor), and for striking down the nation’s sodomy laws (Lawrence) since all three violate what the meaning behind the Constitution when it was first adopted.

It’s true. Under his understanding of “natural law,” Scalia feels entitled to apply his own belief system to court decisions because people may have shared his ancient views years ago — yet he claims over and over that judges should not have the power to make “value-laden” decisions that are best left up to the people and their elected lawmakers. Here’s a gem:

Scalia, in his talk, cited a number of cases that had come to the Court including abortion rights, same-sex marriage, the society’s ability to execute someone for a crime. He claimed that judges were unqualified to answer those questions without grasping that he and the judges are not being asked about the morality of the issues, but rather the legality of them.

Scalia also argued that judges should not be policy makers, but that this should be left to lawmakers and the citizens, saying, “I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”

But Scalia isn’t practicing what he preaches. If he had actually cast his vote based on “natural law” as it was understood by the writers of the Constitution, LaVictoire writes, Scalia’s votes in cases like U.S. v. Windsor would have been completely different:

Under Enlightenment philosophy, ‘natural law’ was interpreted to mean those ‘inalienable rights’ such as life, liberty and the pursuit of happiness/property. This would make Scalia’s job easy. He does not have to interpret the law as per the moral value of what he is ruling upon, but rather look at it in terms of a simple rubric — does this law:

1) Deny someone their life, liberty, ability to pursue happiness or property without due process? If it does, then it violates the Constitution as per the interpretation of the Founders.

2) Deny someone their life, liberty, ability to pursue happiness or property through due process? If it does, then it does not violate the Constitution as per the interpretation of the Founders.

There. Simple.

Apparently, Scalia also dramatically misused historical evidence in his recent speech, seemingly comparing the Supreme Court’s rulings on social issues to lawmaking in the days of Nazi Germany:

Scalia opened up his talk with the idea that Nazi Germany, “the most advanced country in the world” at the time, made the mistake of allowing judges to interpret the law in ways that were intended to reflect “the spirit of the age.”

Scalia makes a huge mistake in his interpretation of history at this point. Chancellor Adolf Hitler created the Volksgerichtshof or People’s Court not to interpret the law, but to end run the traditional courts in order to get the interpretation of the law he wanted. They were not the moral arbiters that Scalia claims, but rather a means to enforce the law as the Hitler regime saw fit. Hitler created the People’s Court specifically to enforce the laws as he wanted them to be enforced, not to act as arbiters of what was and was not constitutional.

The Huffington Post columnist Geoffrey R. Stone also addressed Scalia’s adherence to originalism back in April. Here, he unpacks a claim by Scalia that homosexuality was outlawed when the Fourteenth Amendment was adopted, and therefore sexual orientation shouldn’t be considered when the government determines the extent of equal protections laws. Shocker: he’s wrong.

Since the 1970s, the consensus among physicians and other mental health professionals is that homosexuality is a normal variation of human sexual orientation. The prevailing view today is that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, a position that has been officially endorsed by both the American Psychiatric Association and the American Psychological Association.

None of this, of course, was known in 1868. Just as those who enacted the First Amendment could not have anticipated cell phones and email, those who enacted the Fourteenth Amendment could not have anticipated our current medical, scientific and social understanding of sexual orientation.

Scalia’s inconsistent approach to interpreting the Constitution has left him utterly unable to responsibly carry out the duties of his job. Whether he admits it or not, he’s not ruling on whether laws are actually legal under the Constitution; he’s relying on outdated social norms in an attempt to channel his religious beliefs into law. As LaVictoire so boldly concludes: “Scalia is a theocrat who must now step down.”

If only we were so lucky!

About Camille Beredjick

Camille is a recent college graduate working in the LGBT nonprofit industry. She runs an LGBT news blog at gaywrites.org.

  • Stev84

    If he practiced what he preached, he also shouldn’t have put Bush on the throne.

    And yeah, it’s very clear what he really means by “natural law”. It’s very obvious code for Catholic doctrine.

    • Sven2547

      And yeah, it’s very clear what he really means by “natural law”. It’s very obvious code for Catholic doctrine.

      The profound irony of which is that so much Catholic doctrine is wildly unnatural.

      • Silent Service

        Well said.

  • Zugswang

    So I guess originalism is really defined as, “What I originally thought before the case was argued is what’s correct.”

  • GubbaBumpkin

    … says the justice applies the Constitution based on its meaning at the time it was written — a legal principle known as “originalism”…

    Except when he doesn’t. The most irksome thing about Scalia is that he claims to be deeply principled, but isn’t. See recent articles about his statements on the DOMA decision, about how wrong it is for a court to strike down a law passed by the legislature, just one day after he appeared in the majority decision taking down the Voting Rights Act. Many other such examples are available.

  • http://friendlyatheist.com Richard Wade

    Scalia is not ignorant, he’s duplicitous. I think he is aware of how he is expedient and inconsistent in the several examples you have cited. I’ve seen him questioned about some of his doublespeak, and instead of responding with a sincere interest in examining even the possibility of the contradiction, he smugly begins to secrete an ooze, making him as slippery as an eel.

    • CottonBlimp

      For people as lacking in principle as Scalia, I don’t think the distinction between lies and reality is wholly clear to them.

    • Jonathan Camacho

      Great observation. I’ve also wondered of his cunning words in argument and reasoning. It reminds me of a few videos I’ve seen . Particularly one where he tries to justify torture, called, “Scalia: Torture Is Not Unconstitutional”. In the end of this video, when questioned on his reasoning of argument, he smuggling cuts the questioner off and says, “anyway, that’s my view and it happens to be correct :) ”. http://www.youtube.com/watch?v=T72vgAEX66M&feature=share&list=FLNX6gdcc96qpqBy1a3tpVyQ

  • GubbaBumpkin

    “that texts should be read to mean what they were understood to mean when they were adopted.”

    Uh right. So the right to bear arms which he is so fond of applies only to arms that existed in 1791. I’ve seen jokes about this in various places, including the Colbert Report. He doesn’t believe that, he’ll just say any shit that boils to the surface of his brain to back up the position he holds.

    • jdm8

      That’s highly annoying, given that laptops and smart phones do not have the same protection as a briefcase with paper documents, because they’re not paper. Not that paper documents are necessarily very secure from government agents from rifling through them without a warrant, but there’s no good reason to treat electronic and paper documents differently from each other, from a legal standpoint.

    • Sqrat

      The import think about the phrase ” the right to bear arms,” for an originalist, ought to be that is that it did not mean “the right to own and carry a gun.” It meant “the right to render military service.” Granted, it’s somewhat odd to speak of that as a right and not an obligation, but clearly the Second Amendment in its original context was designed to guarantee the rights of the several states to maintain their own armed forces, as indeed they still do in the form of the National Guard.

      What has happened to the Second Amendment in the interim is that it has been interpreted as a guarantee of the right of individual gun ownership and has been totally decoupled that right from any obligation to use that gun in the service of the state or (when called into federal service) the federal government — not that we’d in general want people going off to war armed with their own personal weapons anyway.

      • baal

        I find it a deep irony that the 2nd amendment’s ‘original’ meaning was that the States could have a State level army to protect itself as a political entity from invasion by a strong (and bigger) federal government was turned on it’s head by the ‘originalist’ Scalia in the recent gun law cases.

        • Sqrat

          If that was the purpose of the Second Amendment, it’s not clear from a reading of the amendment itself. I’d say that one purpose was to allow the states to defend themselves from insurrections and other threats to public order without having to call on the federal government for assistance (and then waiting for federal troops to arrive).

          The other purpose was to express the hope that the United States could rely on a militia of part-time soldiers for national defense and not have to rely on a large standing army, because large standing armies under the control of a central government were believed (not without good reason) to be dangerous to liberty — one of the main purposes of an army was to enable kings to impose their will on their subjects. To say that is not to say, however, that the purpose was to provide for state armies to resist a federal army, thus providing a recipe for civil war. Quite the contrary.

          An modern “originalist” approach to national defense policy would be one that throttled back the US Army in favor of the National Guard.

          • baal

            I’m willing to read your support for your 1st paragraph and largely agree with your second and third.

            • Sven2547

              I’d say that one purpose was to allow the states to defend themselves from insurrections and other threats to public order without having to call on the federal government for assistance (and then waiting for federal troops to arrive).

              I’m willing to read your support for your 1st paragraph

              The Congress shall have power…
              …To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

              –US Constitution, Article 1, Section 8

              I think that covers “defending themselves from insurrections and other threats to public order”.

              • baal

                Very good now please apply it.

              • baal

                To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of
                the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

                Interesting, I was partly wrong, partly confused and you were partly misleading. A1S8 does allow for a national Army (not standing), a national Navy and a national (federal) Militia. Then the founders found the language unclear so they added the 2nd amendment’s “well regulated milita”..”right to bear arms” language. We’re talking about the meaning of 2nd amendment. One view is that “shall not be infringed” is a personal right to each citizen to carry any gun we can get our hands on. Another view is that the “well regulated militia” is the State level Militia (now national guard more or less). If you had a grant of a federal militia in A1S8 and that’s unambiguous (ok i’ll grant you that) then the 2nd amendments question of a State Militia’s right to arms or a personal right to arms becomes more clear (it’s a State right).

        • Sven2547

          a State level army to protect itself as a political entity from invasion by a strong (and bigger) federal government

          State-level? Protection FROM the federal government? I suggest you read Article 1 Section 8, which says that Congress has the power to call forth the Militia. In contrast, you won’t see any association between states and militias anywhere in the Constitution.

        • http://abb3w.livejournal.com/ abb3w

          Actually, there’s argument that the primary “original” meaning was that States could have a State level army to protect itself as a political entity from insurrections — particularly slave revolts.

          • baal

            The commentary (from the wiki article I linked in here somewhere) suggests 4 roles for the 2nd amendment Militias. 1. a reserve force in the States for defense against foreign invaders 2. putting down insurrections (slaves but also religion based ones, the early colonies and pre-US America was well on its way to Europe style religious war 3. defense against a overly strong federal government. The “4.” personal right to carry weapons, seems grafted on later to me.

            I’ll read the truth out link later.

      • f_galton

        What do you base that on? Early commentators on the Constitution recognized the 2nd Amendment as plainly protecting an individual right to keep and bear arms.

        • Sven2547

          Early commentators on the Constitution recognized the 2nd Amendment as plainly protecting an individual right to keep and bear arms.

          Did you even read his comment? He’s talking about the definition of “keep and bear arms”, which has only recently been construed as “own and brandish guns”. To “keep and bear arms” has always meant being part of the militia, which is well-regulated, and takes orders from Congress.

          • baal

            The militias were intended as State entities. I’d have to research more on them taking orders from Congress (except as a back up during an invasion – I’m thinking ‘reserves’).

            • Sven2547

              Just replied below. Where do you get the idea that they were intended as state-level entities? I’m citing the US Constitution, Article 1.

              • baal

                Be more specific. I’ll grant that the Militias of the bill of rights, 2nd amendment were callable for national defense but that does not mean they weren’t also seen as a anti-federal force. http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

                • Sven2547

                  There is not one mention of the individual states controlling, managing, regulating, or otherwise operating militias in the link you provided.

                • baal

                  I’ve never heard of anyone asserting that the 2nd amendment was for a federal militia only. Really, please find me something that supports that reading.

              • baal

                see also the dissent in Heller.

              • Sqrat

                Well, they were not federal entities. Even though Congress, under Article I, was given the authority to make rules to “organize” them and “discipline” them, “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” was reserved “to the States respectively.” The Second Amendment further reinforced the fact that they were not federal entities, though its vague and highfalutin’ language has, I think, done more to obfuscate than inform, given the tendency to read into it a right of private gun-toting entirely divorced from any obligation of public service.

          • f_galton

            Did you read my comment? That’s not what it’s “always meant”.

            • Sqrat

              The question, for an originalist, is not what has it “always meant”, but what did it “originally mean” at the time of enactment.

          • Sqrat

            Ordinarily the militia takes orders from the state governors, except when called into federal service, when it takes its orders ultimately from the president.

        • Sqrat

          I base it primarily on a reading the words of the amendment itself, which for an originalist ought to be more definitive than the opinions of subsequent commentators. The amendment begins, “A well regulated Militia…”, which might be a bit of a hint that it actually has something to do with a militia right and not with the rights of individuals per se.

          Now of course in an eighteenth century context it would be assumed that the members of the militia would render military service using their own weapons, and in that context you could certainly argue that the federal government could not use the disarming of individuals as a pretext for disarming the state militias. But that context no longer holds today and has become irrelevant.

          It has recently been argued that James Madison was swayed to support the Second Amendment because, without it, an anti-slavery federal government might one day deprive the slave states of the militias that they used to guard against and put down slave uprisings. I find that at least plausible.

          It seems to me that there is a stronger originalist case to be made for saying that the reason that feds can’t deprive individuals of the right to own personal weapons is implicit in the Tenth Amendment, not explicit in the Second. However, as it stands, the relatively recent “incorporation” of the Second against the states means that, not only can’t the federal government do so, the states aren’t allowed to do it either.

        • Stev84

          In those days there wasn’t a standing army. Only militias that could be called on quickly in times of war. The idea was clearly for soldiers to own and keep their own weapons, which was the norm for most armies for many hundreds of years. That’s why it also says something about a “well regulated militia”. It was never about every idiot having weapons for their own private enjoyment.

        • Spuddie

          For the purposes of forming a militia. There are some very 18th Century ideas at play here which the “originalists” and gun lobby chose to ignore.

          Militias, although utterly useless wherever they were employed in the Revolution, had very politically influential patrons. The 2nd Amendment was a sop to the former militias and their leaders so that their political influence would not be rendered obsolete in the new nation. After the Civil War, these militias were disbanded in their entirety and replaced with The National Guard system.

          Btw the original use of the 2nd Amendment was not to protect the people from a potentially tyrannical government. But to protect the government from its people. It was first employed in the Whiskey Rebellion on behalf of the government. To enforce a patently oppressive and unpopular tax.

          • f_galton

            The unorganized militia still exists, it’s everyone who is not in the National Guard, see 10 USC § 311.

            • Sqrat

              “Everyone”? That statute says, “(a)
              The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32,
              under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female
              citizens of the United States who are members of the National Guard. (b)
              The classes of the militia are—

              (1)
              the organized militia, which consists of the National Guard and the Naval Militia; and

              (2)
              the unorganized militia, which consists
              of the members of the militia who are not members of the National Guard
              or the Naval Militia.”

              So what is the purpose of the “unorganized militia”? The U.S. Code does not explicitly say, but in practice it is the pool of men who would subject to compulsory military service if the draft were ever reimposed — “The right to bear arms” was transformed over the years into the “right” to be drafted.

          • http://gamesgirlsgods.blogspot.com/ Feminerd

            Don’t forget the militias were called up for the War of 1812, and performed so very poorly that Andrew Jackson called for disbanding them entirely and going to a national army then. He actually started putting this into practice when he was elected in 1824 1828.

        • Isaac

          Fuck off troll.

      • UWIR

        “The import think about the phrase ” the right to bear arms,” for an originalist, ought to be that is that it did not mean “the right to own and carry a gun.” It meant “the right to render military service.” ”

        Aside from the fact that you managed to misspell two out of the first three words of your post, the fact that you think you can must post whatever you want without any support is rather worrisome.

    • UWIR

      That’s strikes me as an incredibly stupid argument. “The right to bear arms shall not be infringed” quite clearly means (and meant, and originally understood as meaning) “The right to bear arms shall not be infringed”, not “The right to bear arms that exist at the time of the adoption of this amendment shall not be infringed”.

  • baal

    Were Scalia on any other court, we would have been able to remove him by now. That man is less a jurist and more a faux news cartoon. As noted in the OP, he’s not hardly even trying to make legal rules that can be followed so much as making sure ‘his side’ wins. And I’ll stop here rather than giving into my urge to hurl invective at him.

    • Spuddie

      I suggest sending him coupons for McDonalds and KFC and letting nature take its course.

      • Silent Service

        Cruel, but what else can we do? Unlike Scalia, we are restrained by both law and a reasonable moral code.

    • http://parkandbark.wordpress.com/ Houndentenor

      He goes on expensive vacations paid for by businessmen with matters before the court. So does Thomas. Yes, both should have been impeached long ago.

      • Silent Service

        I’m not actually sure what the rules are for impeacing a SCOTUS member are.

        Edit: okay I looked it up. Same standards as the President. So an impeachment isn’t going to happen as long as the Retuglicans have something near parity in the House and Senate.

        • http://parkandbark.wordpress.com/ Houndentenor

          It’s the same process as impeaching a president. I’m not optimistic that it would happen, it’s just that it’s hard to watch justices flaunt any standard of legal ethics and get away with it.

          • Silent Service

            Very true. But at the moment the best we can hope for is the slow continuing decline in the Rethuglican powerbase. They’ve gerrymandered their districts all to hell and now they’re screwing with voter rights. It is going to be a long slow process.

    • Silent Service

      Interestingly, before Scalia was on the SCOTUS he was a much more reasonable jurist. He was well aware of the fact that his position was tenuous should he openly push his ideology with too much vigor. Once he was on the SCOTUS the already visible evil exploded into an epic creature of truly vile proportions. It is almost as if he knew that some of his opinions are not actually legal so he restrained himself until he could no longer be removed from office.

      • baal

        I agree, he’s been getting more openly scornful and evil in the last 3-5 years. He used to make some very interesting and hard to argue against legal arguments (not that I agreed but they were strong or compelling in many cases).

        • Silent Service

          I think he sees the writing on the wall and is desperately hoping that Kennedy will last just long enough to retire under the next conservative President. He is terrified that Kennedy will retire before Obama leaves office or that he will have a stroke and die before then. Until then he has to be the one that holds the line. He knows that Thomas can’t be trusted to put a thought together and Roberts isn’t trustable after he voted to confirm Obamacare. Alito can’t hold the court accountable by himself and conservatives consider Kennedy is a bleeding heart liberal. If any one of them depart office before Obama, the court’s makeup will shift to the left once more. That means that if he and Kennedy are forced to retire before a conservative returns to the Whitehouse America is doomed to liberal madness. The idea has to just terrify Scalia. He’s desperate to put America back on the course of righteousness and religious conservatism.

          He’s also a sociopathic fuck-whit and an evil bastard, but evil bastards never realize that they are evil. They always believe that the ends justify their actions.

    • Secular Planet

      “Were Scalia on any other court, we would have been able to remove him by now.”

      All Article III federal judges are appointed for life.

      • 3lemenope

        Generally, removal implies impeachment in a case like this. Of course, I can’t for the life of me figure out what he’d be impeached for. Having legal opinions people don’t like?

        Personally I found this article extremely hacktastic. Scalia’s record as a civil libertarian is, at worst, mixed, and on those issues where he has articulated a freedom-friendly principle he has been quite consistent. Texas v. Johnson, Kelo v. New London, Maryland v. King, Hamdi v. Rumsfeld, Melendez-Diaz v. Massachusetts, United States v. Booker, Kyllo v. United States, R.A.V. v. St. Paul are all great highlights of this side of his jurisprudence, and are by no means exhaustive.

        It should also be noted that he recused himself from Elk Grove v. Newdow (the ‘Under God’ case), so it’s not like he leaps gleefully into the breach to write his religious opinions into law. Usually, when it comes to cases intersecting religion his expressed legal position is one of judicial restraint and deference to the law-making branches.

      • baal

        True but judicial ethics can be used to severely curb the kinds of BS we see from Scalia. The SCOTUS is not subject to any ethics as Scalia is fond of telling us. It’s a matter for their own recognizance. So he doesn’t think going golfing with a person who is a party to an action before the court is a problem. In the rest of the legal system, that would mean being given a reprimand or being assigned the worst job slots.

  • deepak shetty

    it also makes him look ignorant.

    I would think thats the least of his worries – that man’s actively evil

    • http://gloomcookie613.tumblr.com GloomCookie613

      When I read that line, all I though was: Doesn’t just opening his mouth do that already?

  • randomfactor

    I think many of the Americans around at the time the Constitution was written would have been taken aback at the thought of a Catholic on the bench. People grow.

    • GubbaBumpkin

      And now there are six.

      • baal

        That somehow seems disproportionate to me. I don’t think we need quotas but I’d like it if the SCOTUS were more religiously (and otherwise) diverse.

      • Sqrat

        I can’t help but wonder whether this is entirely coincidental.

  • Spuddie

    The dirty little secret about Scalia is that he has zero intellectual honesty in his rulings. He will say whatever will work to get a conservative ruling. To apply any kind of legal philosophical theories to his rulings is a fools errand.

  • f_galton

    You don’t understand originalism or natural law.

    • C.L. Honeycutt

      You’re making excuses. Not even good ones. Just “nuh-uh”.

    • GubbaBumpkin

      You don’t understand originalism or natural law.

      Neither does Scalia.

      • f_galton

        Sure he does.

    • Sven2547

      …..go on?
      Just leaving a comment saying “you don’t understand” is profoundly lazy at best, and dishonest at worst.

      • f_galton

        I’m supposed to give detailed explanations of originalism and natural law in a comment? Look up those concepts, do some reading, and you will see the author does not know what she is talking about.

        • Sven2547

          I’ve done the reading, my friend. Camille’s column does not belie ignorance of these concepts.

    • Spuddie

      Because there is no definition of either. They are bullshit terms to cover up obvious intellectual dishonesty. It is whatever you feel like calling something at the moment.

      You don’t understand an honest good faith argument.

      • f_galton

        Both are well defined. There are entire books on them.

        • Spuddie

          No they aren’t well defined. They are the very opposite of well defined. Plenty of books are written about nonsense trying to justify a position. Entire books are written on them because they are so vague and self-serving in nature that you can go on and on for pages before getting to a point.

          Natural law and originalism are universally employed to justify whatever position the proponent wants to use for the moment.

          Just because something is reduced to writing, it doesn’t make it credible or intellectually honest.

          • f_galton

            You know a lot about these books you haven’t read.

            • Spuddie

              You know what they say about people who assume. They make an…

              Nothing you have posted has shown you have baseline knowledge of anything being discussed. Honest discussion certainly seems to elude you.

              • f_galton

                You’re projecting your own ignorance and lack of understanding.

                • Matt D

                  Ditto.

                • Spuddie

                  Everyone here already thinks you are dishonest and ignorant. I am just stating it clearly since you don’t seem to get the hint from the more subtle posters here.

                  Maybe you don’t notice all the downvotes on your drivel.

                • f_galton

                  Nothing I’ve said is dishonest. If “everyone here” thinks that then “everyone here” must share your level of intelligence.

                • Spuddie

                  Your dishonest idiocy bores me. You have nothing to say which is worth reading. Feel free to go away.

                • f_galton

                  You shouldn’t blame others for your inability to understand things.

                • Spuddie

                  Bwahahaahahaahaah.

    • C.L. Honeycutt

      You just don’t understand sophisticated theology.

  • f_galton

    Citizen’s United wasn’t premised on the notion that corporations are people, the Court ruled certain campaign finance laws infringed the free speech of associations of individuals.

    • Sven2547

      “It’s not a forest, it’s just a hundred acres of trees!”

      • f_galton

        The First Amendment prohibits Congress from infringing speech. It’s disturbing some justices refused to recognize this.

        • Sven2547

          None of those justices voted to infringe upon the free speech of any person. It’s disturbing that some justices refuse to recognize this.

          Name one person whose speech was being infringed upon before Citizens United.

          • Stev84

            It’s also important to remember that they went way, way beyond what was required of them. Usually the Supreme Court is expected to rule as narrowly as possible. They could have easily decided the question before them without ruling that corporations are people. The case really wasn’t about unlimited campaign contributions at all, but about certain restrictions on showing ads.

            • UWIR

              “They could have easily decided the question before them without ruling that corporations are people.”
              Corporations are legal persons. That was an established legal principle long before CU. You are either being dishonest or extremely ignorant.

          • f_galton

            The filmmakers who made Hillary: The Movie are persons, they were having their speech infringed.

            • Sven2547

              The filmmakers suffered no such infringement. They’re allowed to say what they want. They do not have some automatic first-amendment right to have that speech be funded by corporations and put on cable TV close to an election.

              • f_galton

                Free speech means the government can’t control when speech happens or censor speech based on who is saying it.

                • baal

                  Right, political ads are subjected to time a place restrictions. In the citizens united case, wasn’t it a certain amount of time before an election?

                • f_galton

                  The problems with allowing the government to restrict when political speech can be made should be obvious. Thankfully, because of the First Amendment the government has no authority to do so.

                • baal

                  Okkaaay. I’ll assert the opposite (since that’s the game). Obviously, we should stick with American tradition and the rules used in the freer democracies around the world and abolish all political ads, issue ads, and electioneering within 60 days of a national election and 1 mile of all polling places at any time. Thankfully, because of the First Amendment’s limited grant of free speech rights (yup, they aren’t unlimited) the government has the authority to do so.

                • f_galton

                  You should have read the First Amendment before attempting to discuss these matters. Other countries have far less free speech than the United States.

                • UWIR

                  “Thankfully, because of the First Amendment’s limited grant of free speech rights (yup, they aren’t unlimited) the government has the authority to do so.”

                  No, it doesn’t.

                • Sven2547

                  They can’t for individuals. For corporations, they most certainly can. That’s because corporations aren’t people.

                • f_galton

                  The New York Times is a corporation, so the government can censor the New York Times. The documentary film After Tiller is distributed by a corporation, so the government can censor After Tiller. Your local TV station is owned by a corporation, so the government can censor your local TV. NPR is a corporation, so the government can censor All Things Considered. This website is hosted by a corporation, so the government can censor this website.

                • Sven2547

                  The fact that you listed several examples of the Press, which is also included in the 1st amendment, illustrates that you really have no idea what you’re talking about.

                • f_galton

                  If free speech rights only apply to individuals, then the press would have to be solely owned and operated. Those examples are corporations engaging in speech. A corporately hosted web site isn’t a press or an individual.

              • UWIR

                They do have a first amendment right to not have their speech treated differently based on content, regardless of whether they organize themselves into a corporation.

                • Sven2547

                  The individuals do, the corporation does not, nor do they have the right to take corporate money from the outside (which they also did).

                  The only way you can reconcile that is to recognize corporations as “persons” and money as “speech”, which the 5-member majority indirectly did.

                • UWIR

                  The corporation acts on their behalf. If you sell counterfeit iPhones, Apple can sue you, because by selling counterfeit iPhones, you are infringing on the shareholders’ rights, and Apple Corporation is the legal entity that has been established to act on behalf of those rights. Similarly, if some people set up a corporation, censoring that corporation infringes on the free speech rights of those people, and the corporation can sue on their behalf. Either corporations are persons, in which case they can sue on their own behalf, or they are not persons, in which case any reference to a corporation bringing suit must be understood as shorthand for “the corporation, on behalf of its principles, brought suit”. And saying that this is declaring money to be speech is yet another canard.

                • Sven2547

                  Free speech is an individual right. In contrast, corporations have always had the power to hold copyrights and to sue. Your comparison belies an embarrassingly cursory understanding of law.

                • UWIR

                  “Free speech is an individual right.”
                  No, it’s not. This is the very issue that is in dispute, and you are simply declaring your position to be correct.

                  “In contrast, corporations have always had the power to hold copyrights and to sue.”
                  Yes. Because they are legal persons. If the courts did not recognize that rights apply to corporations, and corporations can assert those rights in courts, then corporations would not be able to sue.

                  “Your comparison belies an embarrassingly cursory understanding of law.”

                  Clearly, you are unable to distinguish between “understanding” and “agreement with me”.

            • baal

              Hillary: the movie was a very long political commercial filled with factual errors (hatchet job) and not a movie in the usual sense of the words. The U.S. has had campaigning laws since we began as a country. The founders had no trouble limiting that speech.

              • f_galton

                Movies in the usual sense of the word are the products of corporations. Can the government censor any movie it wants, or not?

                • baal

                  But we’re not talking about movies in the usual sense are we?

                • RobMcCune

                  How did the government censor the movie?

                • UWIR

                  Are you really this fucking ignorant, or are you just pretending?

                • baal

                  I was just thinking you were a better class of biased person representing the regressives than f_galton.

                • 3lemenope

                  Thing is, on the substance, f_galton’s argument is better than yours.

                • baal

                  The hillary movie wasn’t an oversized political ad?

                • 3lemenope

                  It was. The point is that restrictions on political speech are ridiculous flagrant violations of the freedom of speech’s most important purpose; free communication about political beliefs.

                  To crystallize just how much it doesn’t matter that it is a corporate entity rather than a person speaking, can you explain how, for example, you think it is inherently more corruptive for Microsoft to cut a political ad than it is for Bill Gates to do so? Keep in mind that we have reporting requirements for corporations but not people, so it can’t be based on accountability.

                • baal

                  Corporations are not people my friend. Corp. speach is nothing more than some private person deciding what a corp. will say. Why should a private person ever have that leverage?

                  EDIT: more content:
                  Brand name matters and provides an identity shield for rich but uncharismatic folks who don’t want to be publicly associated with their politics.

                • 3lemenope

                  Except corporate finances are oodles more transparent than private personal finances, by law, because corporations are treated as legal persons, to the point where they must file paperwork outlining who are the executive officers and board members of the corporation, so there is *no way* to hide who is behind a corporate communication. So your distinction makes less than no sense.

                  Nor does it make much sense to emphasize that corporations are not people. Leaving aside the legal reality that they are for some functional purposes including most importantly how they can be held accountable to law, something that the “corporations are not people” crowd has yet to explain would work if there isn’t the legal fiction of unified assets and decision-making that a corporate person is designed to be, how is it actually relevant that corporations are not actual people? Do the political ideas expressed become magically invalid because of their source? That’s the genetic fallacy knocking.

                  The whole point of the question I asked is, how is it worse for a corporation to commit speech to the public sphere than a private individual withe same resources to do the same? It’s a question that doesn’t have a positive answer, because speech produced by corporations have no functional difference than speech produced by private individuals. Anything that is potentially corruptive about corporate participation is uniformly worse when applied to private persons.

                  I don’t, and have never, understood the knee-jerk reaction to corporations. Corporations are a tool, nothing more or less. The specific tool is simply a way for individual persons to efficiently pool resources for a common goal. The local teacher’s union is a corporation. The ACLU is a corporation. The New York Times is a corporation. Boeing is a corporation. Nobody seems to whine when the NYT endorses a candidate on their editorial page, or the ACLU cuts an ad bringing light to a contemporary civil liberties issue. Local teachers have interests. Boeing has interests. Why can’t they pursue there’s the way the NYT and the ACLU can, by making their cases to the public?

                • baal

                  “so there is *no way* to hide who is behind a corporate communication.”

                  You’re usually amazingly insightful lmnop but this post is flat ignorant. Secretary of State filings of boards and founding docs only have to show the instant corp. That corp can be a dba or a shell for doing business in that state and the ‘office for service’ can be a po box at mailboxes inc. Add in out of state or foreign stock ownership and finding the real party at interest is difficult. Worse, privite corps don’t always share board member ownership rates so you don’t know who is making the final decisions.

                  Corp speech is a bad thing and doesn’t fall into “free speech” in the constitutional sense. Corp speech is always decided on by humans. Corps cannot and do not have independent wills. This means that the humans who are speaking through a corp have their own personal speech power + corp speech power. That’s a thumb on the scale and seriously unfair.

                  I’m also very confused why you think corp speech is among the more transparent. Let’s take an example that I watched closely. Target Corp in MN, like other businesses, wants to make as much of the public like them as possible. In general, that means Target Corp. is pro-gay. Target, however, wanted the MN republicans to like them but the (R) are anti-gay. So how does Target give money to make them happy too? It donates to a semi-anon group (MN Forward, supergeneric name) that doesn’t have to disclose it’s donors and that group then gives its cash to an anti-gay republican (tom emmer). This is a far cry from one rich person who happens to be on Target’s board giving a $150,000 personal check directly to the Emmer campaign.

                  Also, non-profits who are also not churches have different reporting requirements than companies so it’s easy to distinguish their speech.

                • UWIR

                  It’s truly Orwellian to refer to defense of free speech as being “regressive”.

                • baal

                  Regressive is for your mode of communication. I also don’t see corporations as having a free speech right.

              • UWIR

                “The U.S. has had campaigning laws since we began as a country. ”

                Cite?

                • baal

                  Although attempts to regulate campaign finance by legislation date back to 1867, the first successful attempts nationally to regulate and enforce campaign finance originated in the 1970s.

                  Like everything else we’ve had laws on everything forever. Turns out there is this thing called wikipedia. In light of additional reading, I should have said that people have been concerned about campaign financing since the founding but serious legislation didn’t kick in until 1907 with the tillman act. I suspect someone spending more than the 5 minutes I did could do a better job.

            • RobMcCune

              Really? Hillary: The Movie was directed by someone named Citizens United? What were his/her parents thinking?

              Here I thought the case was about how the movie was being advertized by a political organization and the use of corporate funds by that organization, but no, indie documentarian Citizens United started filming Hillary: The Movie and the mean old government censored him. You learn something new every day.

              • f_galton

                Even “indie documentaries” are produced and distributed by corporations. The case was about free speech, which the government can’t abridge, even if it doesn’t approve of who is behind the speech.

                • RobMcCune

                  And none of what you said actually has anything to do with the case. The FEC misapplied a ban on T.V. campaign ads to a TV documentary add, that’s all. None of the nonsense of the decision handed was even remotely necessary.

                • f_galton

                  The government invited the decision by abusing its authority and infringing a fundamental right.

                • RobMcCune

                  Which fundamental right? A right for legal entities to spend their shareholder’s money on elections, or the right advertise on television?

                • UWIR

                  “And none of what you said actually has anything to do with the case.”

                  Then why did you bring it up? You’re being extremely rude.

                  “The FEC misapplied a ban on T.V. campaign ads to a TV documentary add, that’s all.”

                  It’s “ad”, not “add”, and they didn’t “misapply” anything. The law as written applied to the movie.

              • UWIR

                “Really? Hillary: The Movie was directed by someone named Citizens United?”

                Clearly, f_galton was referring to the natural persons who made the movie. Why do you refuse to argue honestly? Obviously, the movie was made by persons, and if corporations aren’t persons, then the movie couldn’t have been made by a corporation.You’re can’t have it both ways. If you assert that the move was made by Citizens United, then you can’t claim that Citizens United isn’t a person.

                I don’t suppose you think that BP should be able to bar suits over Deepwater Horizon, since they’re not a person, and therefore can’t be sued?

                “Here I thought the case was about how the movie was being advertized[sic] by a political organization and the use of corporate funds by that organization, but no, indie documentarian Citizens United started filming Hillary: The Movie and the mean old government censored him.”

                How are those two at all mutally exclusive?

          • UWIR

            David N. Bossie

            • Sven2547

              In what way was David N. Bosse’s free speech infringed upon?
              And before you say Hillary: The Movie, bear in mind that Bosse is not Citizens United, and Citizens United is not David N. Bosse.

              • UWIR

                Presumably, the movie represented Bosse’s views, Bosse wanted the movie to be advertised, and Bosse, acting through Citizens United, attempted to have the movie advertised. The movie was, in part, a speech act by Bosse.

                • Sven2547

                  In part. And in many more parts it was the injection of corporate money into an election.

                  Corporate personhood and money-as-speech is the end result of Citizens United, and you are okay with that. Admit it. Embrace it. Make it your own and proudly support it. If not, then stop defending it, and help us destroy this abomination of judicial activism.

                • UWIR

                  As I already said, corporate personhood pre-dates CU, so you are simply being dishonest. I don’t see any “abomination” regarding the idea that corporations can be parties to legal actions and that the Constitution doesn’t magically go away when corporations are involved, nor do I see this as “judicial activism”. And CU did not say that money is speech.

                • Sven2547

                  nor do I see this as “judicial activism”

                  Of course not. That’s because “judicial activism” is a made-up term by conservatives for any court decision they disagree with.

                  And CU did not say that money is speech.

                  Given that this was a case over political campaign funding, and the ruling was made on free speech grounds, that is exactly that Citizens United decided. Now, corporations are free to spend unlimited amounts of money on political ads because it’s “free speech” to do so. Are you really so blind as to the precedent this case has set?

                • UWIR

                  “Given that this was a case over political campaign funding,”

                  No, it wasn’t.

                  “Now, corporations are free to spend unlimited amounts of money on political ads because it’s “free speech” to do so.”
                  If a law saying that no one is allowed to spend more than $100/year on birth control were struck down, would that be saying “Money is birth control”? If a law saying that it’s illegal to spend more than 100 hours a year speaking on political matters were struck down, would you that be saying “Time is speech”?

          • UWIR

            Name one person whose speech was infringed upon before New York Times Co. v. United States.

            • Sven2547

              The New York Times is The Press, which was also mentioned in that Constitution you haven’t read.

              • UWIR

                It’s unclear what you’re saying here. Are you admitting that the New York Times is a person? Also, your accusation that I haven’t read the Constitution simply because I don’t agree with you is extremely uncivil.

                • Sven2547

                  It’s unclear what you’re saying here.

                  I’m saying the New York Times is The Press. Are you unfamiliar with this term?

                  Are you admitting that the New York Times is a person?

                  No, I am saying the New York Times is The Press. Are you unfamiliar with this term?

                  Also, your accusation that I haven’t read the Constitution simply because I don’t agree with you is extremely uncivil.

                  I’m not accusing you because you disagree with me, I’m accusing you because you seem to be dreadfully unaware of what it says. And I find your dishonest line of questioning to be uncivil. Ask honest questions or I shall bid you good day.

                • UWIR

                  “I’m saying the New York Times is The Press.”

                  I didn’t ask you to name a member of The Press. I asked you to name one person whose speech was infringed upon before New York Times Co. v. United States. You responded by naming the New York Times. The obvious inference is that you consider NYTC to be a person.

                  “Are you unfamiliar with this term?”

                  That’s clearly not a question asked in good faith.

                  “I’m not accusing you because you disagree with me, I’m accusing you because you seem to be dreadfully unaware of what it says”

                  I have disagreed with you, but you have not established that I am unaware of what it says, so the obvious conclusion is that you said it because I disagree with you.

                  “And I find your dishonest line of questioning to be uncivil.”

                  Calling someone “dishonest” simply because they disagree with you is yet more incivility.

                • Sven2547

                  I didn’t ask you to name a member of The Press. I asked you to name one person whose speech was infringed upon before New York Times Co. v. United States. You responded by naming the New York Times. The obvious inference is that you consider NYTC to be a person.

                  You asked a dishonest leading question, and I clarified by truthfully answering that the NYT is The Press. Since The Press has never been understood to be an individual person, you are either unfamiliar with the term “The Press”, or you are engaging in a dishonest line of rhetorical inquiry. Pick one.

                • UWIR

                  “You asked a dishonest leading question”

                  How is it dishonest? How is it leading? And considering that it was in imitation of your question, doesn’t that mean that your question was dishonest and leading?

                  “Since The Press has never been understood to be an individual person, you are either unfamiliar with the term “The Press”, or you are engaging in a dishonest line of rhetorical inquiry. Pick one.”

                  I don’t see how either is necessary. I never said The Press has been understood to be an individual person.

                  Was any person’s speech was infringed upon before New York Times Co. v. United States? Yes, or no?

                • Sven2547

                  No person’s was, but The Press was.

                  Good day.

                • UWIR

                  So, you’re not going defend your accusations of dishonesty?

                • Sven2547

                  I already explained the difference to you. I can explain it to you, but I cannot comprehend it for you.

                • UWIR

                  Huh? What difference did you explain to me? And I didn’t ask you to explain a difference to me. I asked to defend your accusation of dishonesty. Which you refuse to do.

              • 3lemenope

                There is a metric fuckton of evidence indicating that the freedom of the press as described in the Constitution does not refer to a right peculiar to the media industry but rather refers to the means by which a person creates and disseminates written communications. In essence, the freedom of the press is the right to disseminate written and printed materials.

        • RobMcCune

          What’s disturbing is that some justices think legal entities have the same (or more) rights than people.

          • f_galton

            What’s disturbing is people who believe the government can censor books and newspapers because they are published by corporations.

            • RobMcCune

              And if that actually happened, you’d have a point. The court could easily have ruled McCain-Feingold didn’t apply (which it didn’t), and allowed the T.V. ads to run.

              • UWIR

                “And if that actually happened, you’d have a point.”
                Well, then, since it did happen, he has a point.

  • f_galton

    Current medical, scientific and social understanding of sexual orientation are irrelevant to whether or not it’s a constitutionally protected right.

    • Sven2547

      It IS relevant to the relatively-recent recognition that it is an inherent trait in many people, and not some degenerative illness or mania. As such, there is no reason to lawfully discriminate against such persons.

      • f_galton

        That’s an argument for legalizing homosexuality, it’s not constitutionally relevant.

        • Sven2547

          It’s an argument that the abolition of marriage equality, or of homosexual acts, would violate the Constitutional principle of equal protection.

          • f_galton

            That’s a recent and expansive conception of what equal protection means.

            • Sven2547

              What did it used to mean? That some people are not, in fact, entitled to equal protection under the law?

            • baal

              Did you miss the civil war f_galton? The 13-15th amendments were codification that the south lost and certain rights were going to be recognized. They fundamentally changed the meaning of the Constitution.

              • f_galton

                Those amendments didn’t create a right to engage in sodomy.

                • baal

                  Actually, we already had the right to engage in sodomy. Those amendments granted equal protection under the law. Are you suggesting the those amendments didn’t create a right for interracial couples to marry?

                • f_galton

                  The Supreme Court invented a right to sodomy in 2003.

                • baal

                  Or they said homosexuals could have private lives with out the government being allowed to jail you for loving your partner. I think you’re revealing a little much about yourself with this comment (i.e. your bigotry is showing).

                • f_galton

                  Whatever bigotry I may or may not posess is irrelevant, it’s a legal matter.

                • baal

                  Actually, let me be explicit. Your (and Scalia’s) personal anti-gay bias means that you do not apply legal reasoning in a rational way. Instead, you’re biased against gays so that you read the law in such a way that it supports the outcome you want.

                  The way out of this accusation is to have a legally compelling argument on why homosexuals who engage in sodomy should go to jail when heterosexuals who engage in sodomy should not.

                • f_galton

                  I’m not in favor of sodomy laws. At the same time, I recognize there is no constitutional right to sodomy, which is not surprising considering the authors of the Constitution viewed sodomy as a crime.

                • Spuddie

                  In other words, although its a private act among consensual adults, you believed the government had a right to criminalize it. You think the government belonged in the bedrooms of all American adults.

                  Our liberties are not granted to us. They are a given and our government is constrained from acting in accordance with them. We grant the government the right to act, not visa versa.

                  So essentially you are telling us you do not understand what the right to privacy is or the limits of government in accordance to it. Your argument is one from a point of ignorance then.

                • f_galton

                  Yes, the government has the authority to criminalize sodomy. No, I don’t think it should. There is no right to privacy in the Constitution.

                • baal

                  I don’t understand how you have a ‘free country’ without privacy. Having the government in my house watching me all the time is not freedom.

                • f_galton

                  Sodomy laws did not allow the government into your house to watch you.

                • Spuddie

                  Actually the did. Since they allowed the government to arrest someone based on what they did in the privacy of their home. Maybe you should have read Lawrence v. Texas before making comments about its validity.

                • f_galton

                  So according to you laws against spousal rape allow police to watch people in their homes.

                • Spuddie

                  Um, no. Obviously the part I said about “private act among consensual adults” as part of a right of privacy eluded you. You should have read more closely.

                  Rape of any kind is not consensual. Go back to your troll hole.

                • f_galton

                  Marital rape laws allow the government to arrest people based on what is done in the privacy of their homes. According to you this means the government can spy on us.

                • Spuddie

                  What part of consensual did you not understand?!?

                  I did mention “consensual” acts in my responses to you. I even copied the exact phrase I used before.

                  Instead of arguing a point by taking something of out context, try using the entire thing. Maybe I might be able to take you seriously. Right now you are either ignorant, dishonest or both.

                • f_galton

                  Which is irrelevant to your ridiculous assertion criminalizing certain sexual acts results in government spying on people in their bedrooms.

                • Spuddie

                  Not irrelevant? You are such a lying piece of crap. It is the most material argument against your inane, half-assed argument.

                  You don’t acknowledge or care to understand that marital rape charges involve one person in the household pressing charges against the other. Government isn’t spying. It is being invited through the front door.

                  Go back to your troll hole. It is obvious you have nothing intelligent to say.

                • Silent Service

                  Marital rape laws are only enforceable if the victim files a charge, thus inviting the Government into that person’s private life and not violating privacy rights. Sodomy laws did not require an invitation to the Government into a person’s private life thus violating the right to privacy.
                  You are a mind boggling idiot, f_galton. Truly stunning.

                • f_galton

                  There were sodomy laws in all states, and the laws operated no differently than any other.

                • Silent Service

                  Except that they didn’t. Any nosy jackass could file a complaint on sodomy laws; no victim required. Filing a charge of rape requires an actual victim.

                  Hell, actual sodomy wasn’t even required. Just an accusation of homosexuality.

                • f_galton

                  You don’t know what you are talking about, and there often were victims in sodomy laws prosecutions.

                • Spuddie

                  Keep ignoring the important part about acts of consensual adults, you troll. All you are proving to me is that you are incapable of an honest rational discussion.

                • baal

                  “Sodomy laws did not allow the government into your house to watch you.”

                  Have you read the Lawrence case from 2003?

                • f_galton

                  Yes. Have you? Police entered Lawrence’s apartment because one of his gay lovers falsely reported a gun crime taking place.

                • baal

                  Right, and finding no gun, they should have turned around and walked out again. Fraudulent entry means that all other evidence of a crime should be excluded.

                  Also, it was a set up in the first place.

                • f_galton

                  They would have, but they observed a crime taking place.

                • baal

                  http://www.salon.com/2013/07/28/louisiana_police_use_invalid_anti_sodomy_law_to_arrest_gay_men_for_agreeing_to_consensual_sex/

                  A salon story on how cops try to get in the bed rooms of homosexuals. Notice that the cops were not arresting gays men for public indecency.

                • UWIR

                  “Fraudulent entry means that all other evidence of a crime should excluded.”

                  The entry wasn’t fraudulent. The police were acting in good faith. Your position is completely at odds with established jurisprudence. If they had found a dead body, would you say that they should have just ignored it?

                  Arguing that the law unconstitutional is one thing, but this is just plain silly.

                • f_galton

                  You don’t understand a lot of things.

                • baal

                  “You don’t understand a lot of things.”
                  Damn straight I don’t. But I’m willing to change my mind when presented with evidence.

                • Spuddie

                  Like I don’t understand how you can continue to make such patently dishonest arguments and still think that people are going to take you seriously.

                • f_galton

                  None of my arguments are dishonest. Because you disagree and don’t understand them does not make them dishonest.

                • Spuddie

                  I understand your arguments, I just consider them utter and complete bullshit. Everyone here gets your arguments. Nobody thinks they are intelligent, rational or honest.

                  You are not as smart as you think you are and the rest of us are not as dumb as you think we are.

                  Feel free to go back to your troll hole.

                • Sven2547

                  There is a constitutional right to be secure in one’s home, as well as a right to due process, both of which are violated by the prosecution of private consensual sex acts.

                • f_galton

                  Obviously laws criminalizing sodomy don’t conflict with those rights, which is why they were constitutional until activist judges invented a right to sodomy in 2003.

                • Sven2547

                  That’s like saying “segregation was constitutional until 1964″. It’s complete bull. Nobody “invented a right to sodomy” any more than anyone “invented” a right for women to vote, or “invented” a right to be free from slavery.

                  You continue to stagger me with your ignorance of basic legal concepts.

                • f_galton

                  Women’s suffrage and the abolishing of slavery were done via constitutional amendment. A right to sodomy was created by the Supreme Court in 2003.

                • Sven2547

                  Right, and would you mind quoting to me the part of the ruling that actually creates a new “right to sodomy”?

                • f_galton

                  “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle…The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

                • baal

                  The holding you cite say the State may not criminalize “sexual practices common to a homosexual lifestyle”. It did not say “sexual practices common to a homosexual lifestyle” are an affirmative right. This is important, since like all other rights, we always had them but there were some laws that prevented their exercise.

                • f_galton

                  States can no longer prohibit sodomy, so they effectively created a constitutional right to it. Why are you even arguing such a point?

                • RobMcCune

                  States can no longer prohibit blasphemy, therefore someone just up and invented a right to blasphemy, because that’s how that works.

                • f_galton

                  You do have the right to express blasphemous views.

                • RobMcCune

                  Nope, sorry, if a law creates a distinction, then the Supreme Court overturning said law “creates” a new right. That’s how it works.

                • f_galton

                  Are you on drugs?

                • baal

                  I once freaked out on acid. It was great. Follow us to the cocaine bar and the LSD island.

                • RobMcCune

                  Nope, just repeating your argument back to you. Funny you had that reaction to looking in the mirror.

                • f_galton

                  You’re babbling incoherently.

                • RobMcCune

                  You’re projecting.

                • Sven2547

                  Ruling that the government cannot prosecute someone for something is not the same as “creating a new right”. To the contrary, the decision cited already-existing Constitutional principles.

                • f_galton

                  The ruling effectively created a right to sodomy, just as Roe v. Wade created a right to abortion. Your arguing this is nonsensical.

                • Sven2547

                  What’s nonsensical is your inability to distinguish between the recognition of individual liberties, and the “creation of new rights”.

                • RobMcCune

                  No, what you’re arguing is nonsensical, overturning a law does not automatically create a new right.

                • Spuddie

                  No Roe v. Wade found prohibitions on abortion to be unconstitutional. The right existed, the prohibition was invented since it was written as legislature and found to be unsupportable.

                  You really have no clue how human rights work!

                • RobMcCune

                  “Activist” Judge: A judge who inquires into the implications of constitution.

                  “Originalist” Judge: A judge who blindly follows their own mental image of the 18th century, ignoring the intermediate 2 centuries.

                • f_galton

                  Judges should rule based on the text of the Constitution. If you think that’s wrong, abolish the Supreme Court and let everything be decided through legislation.

                • baal

                  While you can rationally make the argument that the SCOTUS has no role in determining constitutionality of the laws, you haven’t done that. Else, textualism is a pathetically bad idea. Please look up “common law” and consider if you really want legislatures writing laws to cover every single scenario (I don’t).

                • f_galton

                  Common law and constitutional law are two different things.

                • baal

                  Overlapping sets.
                  SCOTUS would still have non-con law to sort out. That would include crim. law, original jurisdiction cases, civil suits, differences between jurisdictions, and I must be forgetting other stuff.

                • RobMcCune

                  Judges should rule based on the text of the Constitution.

                  Translation: “Judges should rule as narrowly as possible except Citizens United.”

                  Odd how you favor the broadest possible interpretation on that case, when television broadcasts aren’t in the text of the Constitution.

                • f_galton

                  They did rule based on the text of the Constitution: “Congress shall make no law…abridging the freedom of speech, or of the press.”

                • RobMcCune

                  And electromagnetic waves are neither printed nor spoken.

                • f_galton

                  No kidding, but the principles of the First Amendment applies to them. While new technologies evolve over time, those principles do not.

                • http://gamesgirlsgods.blogspot.com/ Feminerd

                  But I thought you were an originalist? That we had to take the text exactly as written and apply it exactly as it was intended in 1790, with no recognition of a changing world since then.

                  If the principles of free speech trump the exact wording, welcome to the land of a living constitution!

                • f_galton

                  The original meaning applies to new phenomenon, the meaning itself does not change.

                • RobMcCune

                  So what makes Lawrence v. Texas any different?

                • Spuddie

                  I already know your view. I was just clarifying it past the bullshit stock responses you are giving.

                  Your view was already considered inherently silly when applying the 14th Amendment. A right to privacy lies within the confluence of rights in the constitution involving personal autonomy. Rights to protection against self-incrimination, unlawful searches and equal protection under the law. All civil liberties flow from such an understanding. Its already established whether you chose to believe it or not.

                  To argue it is not explicitly stated in the Constitution is a truly boneheaded argument. We live in a Common Law nation. Laws are interpreted though our courts. Explicit description is unnecessary.

                  The real dishonesty in your argument came from your statemen. “No, I don’t think it should.” Obviously you recognize a right to privacy otherwise you would not have such an objection. You just didn’t want to admit to it outright.

                • Silent Service

                  Not anymore it isn’t.

                • Spuddie

                  No it did not invent a right. It recognized a right which always existed. In 2003 they removed a prohibition which had no rational secular basis.

                • f_galton

                  No one knew that right existed until the court invented it in 2003.

                • Spuddie

                  Untrue. Repeating a nonsense point is not the same as supporting it.

                  They merely recognized a right which already exists, and applied it to the situation. A right natural to human existence. Civil liberties are all about basic rights dealing with carrying on one’s life in a sane reasonable fashion. If anything the court was merely stating what should already be a given in a free society which values civil liberties.

                  A right to privacy, and to have one’s sexual relations out of the purview of government scrutiny is one understood as a matter of course. It is merely a part of sane, free living. Nobody had to invent it. Just understand it existed. Recognized its existence.

                  That is not the same as claiming something was invented. You really should have read the Lawrence decision before spouting off like a moron. Your ignorance of it is pretty clear by your responses.

                • f_galton

                  It didn’t exist, sodomy was a felony everywhere when the Constitution was ratified, and remained so in some places until the Supreme Court invented a right to it in 2003.

                • Spuddie

                  As I said, repeating nonsense doesn’t make it any more true.

                  The right already existed, the laws criminalizing it were declared unconstitutional because of a recognized and existing right to privacy with intimate relations. If it a right was “invented” it would have to come from the legislature, not the judiciary.

                  Laws struck down for being unconstitutional is not the same as a right invented. There is a difference here which you are intentionally ignoring.

                  Read the decision and come back to me. Your ignorance here is too obviously an impediment to a rational discussion.

                • Stev84

                  You are just parroting Scalia’s BS. The case wasn’t about some imaginary “right to sodomy”, but simply about privacy. It may as well have been about any other harmless, private activity the state has no business regulating.

                  You are making the exact same mistake the court did in Bowers v Hardwick: obsessing endlessly about gay sex. But Justice Blackmun saw through that even then:

                  This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia, was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.”

                • C.L. Honeycutt

                  They extended privacy rights to all people, and privacy rights are a well-understood feature of the Constitution.

                  Calling it “sodomy” has been considered creepy for a while now. It’s something that theists do when they want to dehumanize homosexuals.

                • Spuddie

                  Actually they did. You just missed it by a decade.

                  Its called Lawrence v. Texas (2003)
                  http://en.wikipedia.org/wiki/Lawrence_v._Texas

                • Matt D

                  If my sex life is “sodomy”, yours is “rape”.

                • f_galton

                  We can’t use legal terms now? What a joke.

                • Matt D

                  Now you’ve demonstrated a complete lack of empathy, and letting everyone know you’re a sociopath isn’t a joke.

                • f_galton

                  You demonstrate the symptoms of GRIDS dementia.

                • Matt D

                  Do I? Well, regardless, I’m comfortable anyone reading our conversation can judge for themselves.

                • http://confessionsfromthepeanutgallery.blogspot.com/ YankeeCynic

                  And your rank homophobia is laid bare. Go fuck off back to where ever you came from and let the adults talk.

                  Seriously. How vile could you possibly be?

                • f_galton

                  You should ask them to adjust your medication.

                • http://confessionsfromthepeanutgallery.blogspot.com/ YankeeCynic

                  My. Aren’t you clever. Homophobic AND perpetuating mental health stigma. You’re just the total package of fail aren’t you?

                • f_galton

                  I am clever, thanks.

              • UWIR

                Given that those amendments, at the time of their passage, were not understood to prohibit laws against same-sex intercourse, you are at best missing the issue at hand (which is “Is the fact that this was not considered prohibited by Amendment X at the time of the passage of Amendment X the controlling issue?”), and at worse deliberately obfuscating the issue.

                • baal

                  The main thrust of my point is that originalism is dead letter based on the civil war and the fundamental rewrite of the constitution that those amendments represent. My secondary point is that equal protection became the law of the land. My tertiary point is that even though no one was fighting the civil war in order to help out GLBT folks (shocking admission!), the equal protection idea that we don’t treat groups of people as second class citizens (or as slaves). We apply the laws equally to everyone. My quaternary point is that making legal changes takes time to filter through.

                  Even given all that, UWIR, should it be a crime for two men to have oral sex? If yes, then you’re a horrible but consistent person. If no, how do you get there legally?

                • UWIR

                  Originalism refers to the idea that each part of the constitution should be read according to how it was understood when it was adopted, not that every part of the constitution should be read as it would have been understood in 1776, had it existed then. I don’t see how the Civil War made originalism a dead letter.

                  The issue is not whether equal protection is the law of the land, but whether DOMA violated it.

                  I think that it’s horrible that same sex intercourse was once illegal, but I think that it’s a stretch to say it’s unconstitutional, and it’s absurd to claim that the same arguments can’t be applied to incest, and even more absurd that Dan Savage orchestrated a Google Bomb against Santorum in retaliation for the latter saying so. And this is only tangentially related to Windsor.

                • baal

                  “every part of the constitution should be read as it would have been understood in 1776, had it existed then” As I have edited it, this is exactly what I hear every time Scalia talk.

                  I’m still lost as to your legal basis for quashing laws against same sex sex. Your current argument implies that you think the remedy should be legislative only. The problem with that approach is that a civil right is then subject to majoritarian will – that route has a known end point – the systemic abuse of disfavored groups.

      • UWIR

        So, laws against same-sex intercourse are unconstitutional because we’ve recently recognized that laws against same-sex intercourse are unconstitutional?

        • Sven2547

          No, laws against same-sex intercourse are unconstitutional because people have the rights of privacy, association, liberty, and the pursuit of happiness.

          The reason why this decision was reached in 2003 instead of 1785 was because the lawmaking community (and society in general) was widely uninformed/misinformed on the nature of same-sex relationships until relatively recently.

    • C.L. Honeycutt

      “Current medical, scientific and social understanding that being black is not due to being the cursed descendants of Cain is irrelevant to whether or not blacks have the same Constitutional rights as whites.”

      • f_galton

        That’s true, too.

  • f_galton

    Could you provide an actual example of Scalia imposing Catholic morality?

    • Sven2547

      His opinions in Lawrence and Windsor were two attempts to do exactly that.

      • f_galton

        If he said states could not legalize homosexuality because it is a sin he would be imposing Catholic morality. Observing there is no right to homosexuality or homosexual marriage is adhering to the Constitution.

        • baal

          The constitution is 4,543 words long. The CFR is big enough that it’s hard to lift single volumes let alone all 200. I submit that you’d have a hard time making similar observational support for the vast majority of that. Despite that fact , the SCOTUS has little trouble accepting that giant mass of law. When a rule is generally applicable and narrowly applied, it’s the bias of the wielder of the rule controlling the outcome and not the rule or the facts. It’s entirely apt to accuse Scalia of bias on this basis.

        • Sven2547

          Arguing against equal protection is infringing on the Constitution. The legally-recognized rights of privacy, association, liberty, and the pursuit of happiness are all in play here.

  • opinionatedcatholic

    This article is problematic I think. The fact that the author thinks Justice Scalia is an an advocate of ” Natural Law ” juridprudence is hilarious for those of us that follow him since he very much on ther record as opposing it. A back and forth he has with Catholic Natural law adovcates for some time

  • Opinionated Catholic

    I often wonder how many Court cases have been lost because a Lawyer misunderstood a Judge. This article reminds me of that

    Scalia at a Catholic conference was thanked for standing for the pro life cause. He took offense. He said if I am standing up for the Pro life cause I am doing my job wrong

    That brings ups the interesting case of the concurrence by Justice Clarence Thomas, joined by Justice Scalia, in the Partial Birth Abortion legislation case. The Opinion upheld the law but both STRONG CATHOLICS Scalia and Thomas indicated that is too that bad you did not bring up a Commerce Clause objection.

    So the Lawyers either thought that both Justices Catholicism would make any argument to them mute so they missed the obvious Federalism issue that could get their vote.

    or

    Well in the Battle between abortion rights and the chance of having a limit on the Commerce Clause and Federal power abortion rights I guess not lost out.

    Anyway I bring up that example that making assumptions about a Justice motivation or what he sees as the main issue can be very wrong

    • baal

      Scalia and Thomas want to severely limit the power of the commerce clause since it’s what enables much federal legislation. They were teasing the liberals with a facitious trade, we’ll give you protection on pro-choice rights in exchange for undercutting all ‘liberal’ spending by the federal government. Sorry, under Occam’s Razor the best reading of all the data is that Justice Scalia is a pernicious and egomanical jerk. He’s also has public flatly homophobic statements.

    • UWIR

      Well in the Battle between abortion rights and the chance of having a limit on the Commerce Clause and Federal power abortion rights I guess not lost out.

      That is not a coherent English sentence. And you misspelled “justices’ ” and “moot”.

  • frankbellamy

    Camille, you are the one applying your own personal standards instead of objective history/fact. You should be embarrassed by your ignorance of the law you are attempting to comment on. As Scalia would point out, to an originalist, “liberty”, as used in the fifth amendment (which applies to federal laws like DOMA), means what it meant when the fifth amendment was adopting in 1791, not what it means to you today. Scalia’s vote in Windsor may have been morally wrong, but it was exactly what was dictated by his originalist philosophy. There are positions Scalia takes that are inconsistent with originalism, but you completely missed them.

    • Spuddie

      Lying about history is part in parcel with “originalism”. There is no real philosophy to it other than making up something to justify a right wing decision and claim it was the original intent of the founders. Its the legal version of David Barton’s historical revisionism.

      Originalism is about as intellectually dishonest a mode of legal discussion as one can seem to get away with. Besides the fact that even Scalia only uses it when it suits the outcome he is looking for, it is inherently silly for many reasons.

      1. Scalia is not a necromancer. He cannot divine the precise will and intent of those who drafted and ratified the constitution. At best he is applying guesswork and interpolation.

      2. The founders left a major defect in the Constitution which took almost a century to rectify. Originalism ignores the fundamental shift in Constitutional thinking after 1865 and SCOTUS’s role thereafter.

      3. As a common law nation, we leave interpretations of written laws to the courts. Originalism ignores the Supreme Court’s own role in that duty.

      4. It treats the constitution like bible study instead of legal study. The text becomes parsed and sacrosanct rather than interpreted rationally. It invites draconian and capricious rulings. Closing interpretations which were meant to be left open and vague.

  • eric

    I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”

    WTF? That isn’t the question, and in fact it makes a terrible analogy for his side since orgies are legal. So we have here a case where nobody is asking the court to rule on a queston because people generally think the choice of whether to do it should be left up to the citizen. Exactly how does this example support Scalia’s opposition to gay marriage?

  • Jerry Spiegelman

    One would think that someone that has achieved this office would be non-partisan and understand the concept of separation of church and state. This man is a disgrace to the Supreme Court and a disgrace to the USA. If he had a bit of brains he would step down and become a priest.

    • Silent Service

      For the justices to be non-partisan we would have to remove the political process from their selection.

    • kaydenpat

      I assume that none of the Justices are non-partisan.

  • Ogre Magi

    Why would you expect anything different from a christian

    • http://gamesgirlsgods.blogspot.com/ Feminerd

      Considering that 8/9 justices are Christian (Ginsberg is Jewish), I expect much more from Christians.

  • Mick

    “…one LGBT-interest columnist says his twisted understanding of how the
    law works doesn’t just hurt American citizens — it also makes him look
    ignorant.”

    He’ll wear that insult with pride. Christians love it when outsiders to call them ignorant. It’s invigorating and gives them the chance to play the victim or even the martyr.

  • duke_of_omnium

    The good news is that Scalia is an old man, and his wicked old heart will stop beating soon due to the ravages of age and wickedness. The bad news is, it won’t (can’t) happen soon enough.

  • Alan Magid

    ‘Catholic morality’ is an oxymoron.

  • Jason

    If nothing else, this is a perfect demonstration of the infection caused by religion in society. This example is further galvanizing the resolve of Atheists to rid the government of religious influence. I for one, thank god for Justice Scalia.

  • http://www.facebook.com/jerel.johnson1 lib1

    I’ll never forget when Scalia said the 14th Amendment did not apply to women in 1868. Does he still hold these beliefs to be true when confronting volumes of case law that speaks otherwise? Scalia and Thomas are the toxic twins, the interpret the Constitution as they think it means. Their originalism is activism made right wing.

  • Brian

    If he should not impose personal or religious morality, what morality should he impose? In adjudicating, is anyone ever capable of imposing anything but their own personal morality? Even if he decides to use someone else’s morality, isn’t that in itself a personal moral call? And what makes one individual’s or group’s morality superior to the other?


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