the gar spot

fiction and musings from a gay black dude with delusions above his station

Menu
  • About
  • Privacy Policy
  • SIN AGAINST THE RACE, a novel
Menu
the gar spot fiction and musings from a gay black dude with delusions above his station

Gay Law and the Scalia of Justice

Posted on December 8, 2012December 9, 2012 by gar

When the tweets came out that the US Supreme Court would hear cases challenging 1996’s Defense of Marriage Act (DOMA) and 2008’s Proposition 8, I paused.  Most of the initial responses I saw seemed happy that the cases would have their day before the Supremes.  My enthusiasm was tempered, however, and I can explain my reticence in two words:  Antonin Scalia.

How I hate that he shares the same first name with one of my favorite composers.

It is hardly difficult to find Justice Scalia’s standing on this issue.  One need only go to Lawrence v. Texas, the landmark 2003 decision that struck down sodomy laws across the country.  Prior to Lawrence, a handful of states still had laws on the books which allowed police to go into your bedroom and arrest you for having consensual sex.  Under those laws, “sodomy” had a pretty broad definition that basically meant anything except the procreative missionary position.  So if the police went on a call and into someone’s home and found two guys having sex, any kind of sex, the men could have been arrested and punished with fines or jail terms.

The Lawrence decision did away with such laws, but not with Justice Scalia’s help.  He vociferously dissented.

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
– from Justice Scalia’s dissent in Lawrence v. Texas (posted at Cornell University Law School)

He goes on to say that he has nothing personal against homosexuals, “or any other group, promoting their agenda through normal democratic means.” Note this point well.

Just last October, Justice Scalia made public comments at a book reading about his take on hot-button issues:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute.
– Quoted from The Huffington Post

He calls himself a “texualist,” that is, one who takes the text of the Constitution very literally.  The Constitution means exactly what the writers at the time meant it to mean, and that’s that.  Therefore, by his logic, the framers did not intend the document to have sufficient elasticity to rule that the death penalty is cruel and unusual or that abortions and “homosexual sodomy” are protected rights.

One can’t help but wonder whether he feels that heterosexual sodomy is a protected right.  Or if he believes through some legalistic legerdemain that the Constitution only protects the missionary position because of its procreative prowess.  But I digress.

The Huffington Post article also states that Justice Scalia prefers that thorny issues like abortion and gay marriage be dealt with by the legislative branch.  He said as much in his dissent in Lawrence.  Folks should urge their elected representatives to pass constitutional amendments, he argues, but then admits that the process is very difficult.

In other words, if it ain’t in the Constitution, we can’t talk about it.  With such Simple Simon thinking, why bother having a court system at all?  We could just have someone whose sole task is to look up issues to see if they are mentioned in the Constitution.  Hell, why pay someone to do it?  Nowadays, we can just use a computer with a search function. Siri could do it.

“Siri, is sodomy mentioned in the United States Constitution?”

“Let me check that for you.  No, gar, I do not see ‘sodomy’ mentioned in the United States Constitution.  Would you like me to search the web for that?”

No mention means it is not a protected right.  Darn.

While he claims not to have any personal animus against homosexuals, he clearly has a problem with granting them rights and equal standing via court decisions, and he uses  “texualism” as an excuse.  This is a cop out, the same sort of cop out that many conservatives use to hinder changes that they do not like.  Justice Scalia tipped his hand about his opinion of sodomy laws in the quote above when he referenced the number of years such laws stood on the books before Lawrence.  For 200 years, he stated, it was criminal in every state.  It was fine for 200 years, he’s basically saying, and it would have been fine for another 200 had it not been for a meddling, activist court.

The other cop out that he uses is the conservative battle cry “states rights.”  In Lawrence he argues that if a state wants to forbid sodomy, however it defines sodomy, so be it.  He believes that if a minority of folks do not like a law which adversely affects them, then they need to appeal to the good graces of the majority of the population to change it.  Forget about the whole business of the courts being the equalizer to protect the minority against the tyranny of the majority.  Again, with that type of attitude why bother having a court system at all?

So it is no secret at all how Justice Scalia will rule on DOMA or Prop. 8.  But think for a moment where such Simple Simon thinking would get us if our courts abounded with Scalias (heaven forfend). Think of all the injustices that would have lingered far too long simply because a “textualist” court refused to interpret the constitution and only slavishly obey it.

I saw “Lincoln” recently, so the issue of slavery comes to mind.  My favorites scenes were those showing the debates in the House of Representatives over the 13th Amendment, which enshrined President Lincoln’s famous Emancipation Proclamation into the US Constitution and ended slavery in this country for good.  Slavery enablers clung to dumb arguments like slavery followed the natural order of things as ordained by God, or that slavery was a “states rights” issue best left to the states.  Indeed, both the natural order and states rights rationalizations appeared in the Articles of Secession of nearly all of the former Confederate States.

Had President Lincoln not doggedly pushed for passage of the 13th Amendment, then the freedoms granted by the Proclamation might have been short lived.  One could easily imagine a 19th century Antonin Scalia salivating at the opportunity to put President Lincoln in his place by squashing his Emancipation Proclamation under the heel of his judicial boot.  After all, prior to the 13th Amendment, nothing in the Constitution outwardly forbade turning a segment of the population into chattel.  A 19th century “texualist” would have no problem with that argument.

“Texualists,” by their own definition, will always be on the wrong side of history.  Undoubtedly Justice Scalia will be on the wrong side of marriage equality and his opinions will be mocked by future generations.  My hope is that his will be but one small, shrill voice that will be muted by a majority that embraces the future and does not fear it.

© 2012, gar. All rights reserved.

2 thoughts on “Gay Law and the Scalia of Justice”

  1. Pingback: May We All Choose Love — The Good Men Project
  2. Pingback: May We All ‘Choose Love’ | the gar spot

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

SIN AGAINST THE RACE, a novel–Click image for info

Sin Against the Race

Contact

  • email gar

Twitter

Follow @the_gar_spot

Instagram

garmcveyrussell

Pride brunch. #pride #pridemonth #pridesunday #pr Pride brunch. 
#pride #pridemonth #pridesunday #prideday #pancakes #brunch
Dug up from the archives. I can’t believe we hav Dug up from the archives. I can’t believe we have to fight for this again. 
#abortionrights #abortionishealthcare #cisgaymanforchoice
Time to write more letters to encourage people to Time to write more letters to encourage people to vote. Tempus fugit.
#abortionrights #abortionishealthcare #roevwade #mymarriageisnext #voteblue #voterepublicansout
Pride flag over the Claremont Hotel. Don’t think Pride flag over the Claremont Hotel. Don’t think I’ve ever seen that before. 
#pride #pridemonth #berkeley
New outdoor dining set. #backporch #alfresco #hom New outdoor dining set. 
#backporch #alfresco #homedecor
Consulted with my editors this morning. I value th Consulted with my editors this morning. I value their feedback. 
#trees #hiking #oakland #writersofinstagram #iputmyfaithintrees
Remembering Roger Ebert on what would have been hi Remembering Roger Ebert on what would have been his 80th birthday. 
#rogerebert #writer #legend #cancersucks
Fly me to the moon (not pictured) Let me play amon Fly me to the moon (not pictured)
Let me play among the stars
Let me see what spring is like
On Jupiter (the brighter one) and Mars
#backyardastronomy #jupiter #mars #predawn #goodmorning
A gorgeous day at the #oaklandgreekfestival #oakla A gorgeous day at the #oaklandgreekfestival #oakland #greekfestival #greek #music #food #ilovemycity
I used to rock the hell out of these. Cards of dis I used to rock the hell out of these. Cards of discovery and endless possibilities. I still miss them. 
#cardcatalog #library #knowledge #og #searchengine
A sunny Saturday in 1990 found my sister Tania (@m A sunny Saturday in 1990 found my sister Tania (@makeuptogoblog) and I outside of the Julia Morgan Center waiting. I had seen the great Maestro Pt. Shivkumar Sharma in LA—he even autographed an album for me. And I was studying tabla with his accompanist Ud. Zakir Hussain at the time. We couldn’t wait. But wait we did, because the maestros weren’t there. As my sister and I stood at the front of the line, they came. Ud. Zakirji was laughing and joking. Pt. Shivji looked as if he floated in as he passed and entered the theater. After we got settled in our seats, it was on. A beautiful concert with the two maestros playing rapturously, holding us spellbound. Pt. Shivji floated in like a deity and played to the heavens, taking us all with him. By far one of my favorite concerts. 

Words cannot describe how devastated I am at the great master’s passing. His gifts to music and the world are incalculable. My condolences to Panditji’s family, to @zakirhq9 , and to all who loved his beautiful music. #ptshivkumarsharma #indianclassicalmusic #santoor #rip
This makes me very happy. #oaklandgreekfestival # This makes me very happy. 
#oaklandgreekfestival #theyreback #yahoo #greek #oakland #ilovemycity
Happy 85th Birthday to legendary Maestro Ron Carte Happy 85th Birthday to legendary Maestro Ron Carter! The most recorded bassist in history, he was a huge inspiration for my late brother Robert. And he continues to inspire bassists and musicians to this day. 
#happybirthday #roncarter #legend #bassist #jazz #music
Dinner on the back porch. #alfresco #dinner #pizza Dinner on the back porch. #alfresco #dinner #pizza #arizmendi #evening
My sacred music day where I pay homage to Duke Ell My sacred music day where I pay homage to Duke Ellington (1899-1974) and Ustad Alla Rakha (1919-2000) on their shared birthday. This year I’m also celebrating the 100th birthday anniversary of harmonica and whistling maestro Toots Thielemans (1922-2016). Enjoy the music of all of these legends! ✌🏾 ❤️ 🎶 
#dukeellington #allarakha #abbaji #tootsthielemans #centenary #happybirthday #music
Happy Birthday Ella Fitzgerald! Born on this day i Happy Birthday Ella Fitzgerald! Born on this day in 1917. 
#ella #ellafitzgerald #firstladyofsong #jazz
It’s the only home we got. Let’s treat it with It’s the only home we got. Let’s treat it with respect and love. 
#earthday #earthday2022 #home #planet #environment
A harrowing day, but it ended safely. I’m home n A harrowing day, but it ended safely. I’m home now with a nice cup of tea. ☕️ 
#berkeley #shelterinplace #allclear #home #tea #murchies
This pale blue beauty is destined to become part o This pale blue beauty is destined to become part of my #sundaybrunch #pancakes. Fresh from my next door neighbor!
Celebrating the centenary of a great musician. Hap Celebrating the centenary of a great musician. Happy 100th Birthday Ustad Ali Akbar Khan Sahib!!! His great legacy lives on. 
#aliakbarkhan #centenary #indianclassicalmusic #sarode
Load More... Follow on Instagram

Facebook

Subscribe by email:

Archives

Blogroll

  • Life During Wartime – The Trump Years
  • Patricia Dunn – Author
  • Philip Robinson, poet
  • The Outspoken – You're Welcome
  • Uppity Negro Network

Interests

  • Cassini Probe @ Saturn
  • Daily Kos
  • Doctor Who
  • KCSM – Jazz 91
  • Makeup to Go!
  • The Root

Tags

99% african-american AIDS Bay Area bigotry Billy Strayhorn black Black Lives Matter climate change Duke Ellington dystopia dystopian fiction gay growing up gay healthcare history homophobia jazz LGBT LGBTQ literature marriage equality music North Korea novel Oakland police brutality politics queer queerlit queer lit racism rant reading Religion Republicans Romney SATR science fiction Sin Against the Race Trayvon Martin Trump women in jazz writing

Meta

  • Log in
  • Entries feed
  • Comments feed
  • WordPress.org
©2022 the gar spot | Theme by SuperbThemes