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Scalia the prophet

By Phil Lawler (bio - articles - email) | Aug 06, 2010

Back in 2003, Supreme Court Justice Antonin Scalia saw the handwriting on the wall. In his vigorous dissent from the Court’s majority decision in the Lawrence case—which struck down a Texas law against sodomy-- Justice Scalia wrote

If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

{H/T James Taranto, “Scalia Was Right,” Wall Street Journal}

Justice Scalia’s accurate prophecy is all the more unsettling because Justice Anthony Kennedy—by general consensus, the key “swing vote” when the Proposition 8 case makes it inevitable appearance before the Supreme Court—voted with the majority in Lawrence.

Brace yourself.


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  • Posted by: samuel.doucette1787 - Aug. 16, 2010 8:15 AM ET USA

    The problem as Christopher Ferrara recently pointed out in The Latin Mass magazine, is the legal positivism that even Scalia professes. Basically, the originalist flavor of legal positivism divorces the law from its natural law foundation and says that "whatever the Founders intended is the right way to interpret the Constitution" instead of "whatever God wrote on men's hearts is the right way to interpret the Constitution". This leads to the lack of a basis to fight homosexual marriage.

  • Posted by: extremeCatholic - Aug. 09, 2010 10:21 AM ET USA

    Scalia will also be prophetic to state that the next step will be criminalization of that "moral disapprobation" of which he wrote. Holding the Christian view of sexual morality will create a new suspect class under law.

  • Posted by: DrJazz - Aug. 07, 2010 11:19 AM ET USA

    Get ready: The Supreme Court is going to make same-sex marriage the law of the land soon. It won't be long afterward that teachers will be required to accept it as normal and/or teach it. In another 10-30 years citizens will be penalized for speaking against it. Fence-sitters: Choose your side. May God have mercy on the people of this formerly great nation.

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