I was not aware until recently of the details of the case of Lawrence v Texas referred to my previous Blogpost but reading the decision I was struck by the prescience and accuracy of the dissenting opinion of Justice Scalia in that case. I was also impressed by his ability, unfortunately not shared by many Judges today, of recognising the proper limits on Judicial power. For that reason I put below some extracts from his judgment. In reading what he says I hope readers will try to make the distinction he makes between personal views on the rightness or wrongness of laws and their constitutionality and legality. I particularly endorse his final remark judgments are to be made by the people, and not imposed by a governing caste that knows best.
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, estiality, and obscenity are likewise sustainable only in light of [Bowers v. Hardwick 478 U. S. 186 (1986)] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision;"
"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation."
"Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct."
"The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “ ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ ” ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."
"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. "
"One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."
"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. "
"It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens,later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."