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12/02/2010

NOM hearts Scalia's hotshot lawyer theory; we see that theory, raise them a 'Lawrence' actuality

by Jeremy Hooper

201012021427The National Organization For Marriage is praising Supreme Court Justice Antonin Scalia, linking his recent comments about due process and the Founding Fathers' supposed intent to the ongoing Prop 8 matter:

The ABA Journal reports on his speech at the University of Richmond where he defended the idea of “originalism” which to some of us less brilliant folks can be translated as: words actually mean things.

He points out the founders of our Constitution clearly did not understand the Due Process clause to require gay marriage or abortion.

And then he warned about the alternative theory, the “living document” theory effectively allows “five out of nine hotshot lawyers to run the country.”

Ted Olson once understood that would wrong, but I guess when you are one of the hotshot lawyers it seems like an increasingly good idea. God bless Justice Scalia for resisting the temptations of power!

Justice Scalia: Don't Let Hotshot Lawyers Run the USA! [NOM Blog]

An interesting love letter. Though personally we prefer this followup comment from someone named Patrick:

Screen Shot 2010-12-02 At 2.11.10 Pm

Because Scalia did say just that in his Lawrence dissent:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
...
At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; 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,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? 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. Many will hope that, as the Court comfortingly assures us, this is so.
Scalia's Lawrence v. Texas dissent [Cornell]

And if he truly believes that words actually mean things, then he's going to have a tough time using a procreation argument to justify his own marriage equality resistance, at least if he plans to operate in a world with both an Equal Protection Clause and a 6-3 Lawrence ruling on the books.

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