An Editorial Opinion – Extreme Court flirts with tyranny

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The following are edited excerpts from the dissenting opinion written by U.S. Supreme Court Justice Antonin Scalia in the case involving the federal Defense of Marriage Act (DOMA). The court overturned the law last week by a 5-to-4 vote.

The Citizen endorses Justice Scalia’s opinion.

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former.

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case.

. . .

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” [James Madison].

The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive.

. . .

There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are.

. . .

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. ... It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid — indeed, downright boring — justifying rationales for this legislation. Their existence ought to be the end of this case.

. . .

By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

The majority concludes that the only motive for this Act was the “bare ... desire to harm a politically unpopular group.”

Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn, but our respected coordinate branches, the Congress and Presidency of the United States.

Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute.

The majority does the opposite — affirmatively concealing from the reader the arguments that exist in justification.

It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

. . .

The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers — or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are.

But the majority says that the supporters of this Act acted with malice — with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose .. a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” ante, and to “humiliate[e]” their children.

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution.

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.

All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history.

It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.”

I have heard such “bald, unreasoned disclaimer[s]” before. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.

I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

. . .

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare ... desire to harm’” couples in same-sex marriages.

How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

. . .

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples.

The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage — a debate that can seem in need of our clumsy “help” only to a member of this institution.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.

Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices — in other words, democracy. Victories in one place for some, are offset by victories in other places for others.

Even in a single State [Maine], the question has come out differently on different occasions.

. . .

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle.

Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

danz57
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A Victory for Human Rights

A key role of the judiciary in our democracy is the protection and expansion of human rights. Its great to see the US Supreme Court once again fulfilling this vital role.

A cursory analysis of the history of the civil rights movement for racial minorities will reveal the central role of the federal judiciary in paving the way for the legislation which followed. Then, as now, right-wingers terrified by social change claimed that the courts were wrecking the country. Then, as now, it was all simply fear of change.

As I’ve said here before, I really can’t comprehend this fear of marriage equality for the LGBQT community. If you don’t like gay marriage then don’t have one, but don’t try to deny others a basic right based solely on your irrational fears.

LongTimer
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So whats next?

Is the Government going to decide next that its ok for humans to start marrying monkeys, dogs, cats. I mean the sky's the limit, there's no stopping now, the cats out of the bag so to speak. I have a great idea for someone to start a dating site for humans and animals. You would be on the ground floor
and would stand to make a bundle.

Spyglass
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you have no real argument

So you resort to posting nonsense.

AtHomeGym
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Spyglass & Longtimer

Spy, he/she may be a Longtimer SOMEWHERE, but it sure isn't on THIS site!

tgarlock
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Cal has provided a service . . .

. . . by posting this insightful piece that should be required reading for every citizen.

Some readers may know that I often select column subjects to write about to prompt thinking outside the box, and this is no different.

Cal and I would disagree about gay marriage. If the thought of two men making love makes me nauseous, and it does, I need to remember it isn't about me, and my nausea should not determine for them who they may and may not love, and it should not allow me to impose my personal beliefs on them to deny them the benefits of marriage. For me, unlike the vast majority of my fellow conservatives, it is a conservative principal of freedom that leads me to that choice that would put me on the opposite side of both Cal and Justice Scalia on the issue.

BUT, and it is a big but and the entire point Scalia is making, the majority in this case did not base their decision on sound legal principles and did not clearly state their reasoning for all to judge. Instead, the majority pointed the finger of accusation against all who supported the DOMA federal legislation, as if these justices knew what is in your heart and mine.

Scalia's point is that it is BAD LAW, and he is right.

Ironically and similarly, the 1973 Roe v Wade abortion decision was similarly BAD LAW. Not that it matters, but I always knew it was bad law for the court to devine a woman's right to choose as a component of the right to privacy the court somehow found in the Constitution, even though it was not and still is not there. Personally, in the tug-of-war over who gets to make the abortion decision - the feds or the state or the woman - I come down on the side of the woman not because I consider that right to be sacred as lefties seem to believe, but because it seems to me the least bad choice. The good thing about Roe v Wade is it stopped the firestorm of debate by settling the matter, but maybe the founders would have opined that the foodfight of extended debate may be dirty and uncomfortable but characteristic of democracy and far better than shutting the public up with badly flawed law.

And now this gay marriage decision that Scalia criticizes does the same thing. Instead of the social debate, state by state, that had been shifting quickly whether we like it or not toward the side of gay marriage, the majority in this case interceded - with bad law - to paint the opponents of gay marriage, whether based on deeply held beliefs or not, as enemies of the human race.

It is bad law, and any serious citizen would improve their inventory of thoughtful views on the subject by giving it a careful read. Cudos to Cal for printing it.

Terry Garlock

stranger than f...
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How Refreshing, a Pragmatic Conservative

Mr. Garlock – How refreshing to read a conservative firing neurons in his prefrontal cortex before those in the patellar ligament in response to an emotionally charged issue! When faced with an argument demonstrating an unwelcomed logical consequence, many Citizen posters conjure a “principle” that magically emancipates them from any ratiocination. I suppose these sacrosanct “principles” emanate from the holy trinity of Limbaugh, Fox, and Drudge.

However, you have bothered to consider Justice Scalia’s argument and rejected it for logical reasons (even though this result rankles your personal sensitivities). Since I am rarely exposed to anyone’s sexual proclivities, the intimate behavior of consenting adults places no burden upon me. I agree with you that freedom from federal government intrusion into an American’s daily affairs (especially something as personal as whom he chooses to marry) easily trumps the majority’s dictation of how that American ought to love.

Thank you for being honest enough to think rationally instead of emotionally. Perhaps your cognitive efforts will become contagious with you fellow conservatives.

Davids mom
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The Editors Opinion

Is anyone surprised? It's his paper and his right. You're reading it - and have the right to disagree. At least he gives us a forum to express our disagreement. Calling him names won't change his opinion. I also disagree with the editor - but I'm not surprised!! He's pretty consistent I feel the Court followed the Constitution. The marriage laws in this country must to be applied equally. Who one marries is an individual choice.

Quote:

Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

G35 Dude
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Scalia is right this time!

Marriage is not a right. It is a contract between 2 people originally defined by the church to assist society and further the growth of same. And the government has no place in defining it. Don't get me wrong, I don't care what two people do behind closed doors as long as they both consent and I don't have to see it. That's not what these people are trying to get because they already have that. What they want is for companies to be forced to extend benefits to same sex partners. When this happens these same companies will pass that additional cost on to us, their consumers. Are we ready for that? I've heard that 8-10% of the population is gay. Are you ready for a 10% increase in the price of everything you buy? Cars, houses, etc.

S. Lindsey
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Government should not be in the business of Marriage...

...SCOTUS pushed it back to the States. In California the Government usurped the will of the people by ignoring the vote, deciding not to appeal a lower court Judge's ruling overturning the referendum.

First the Judge had no standing...

His ruling should have been easily overturned if the ELECTED Officials had of done their jobs and enforced the Will of the People, but no, they caved to political pressure. SCOUTUS agreed that this was a 10th argument and the individuals that brought this before the Court had no standing.

They where right.

Where they are wrong is where they decided this was a State issue. Government be it Federal, State or local have no standing in determining what constitutes a Marriage.

Just like Abortions....Marriage is not in the Constitution and to get there just like in Roe v. Wade one has to "interpret" and then find meaning in some cryptic way to get there.

Yes I am an Originalist.. I believe that Government should be limited to the powers granted to it by the Constitution and only the Constitution. Additionally SCOUTUS's purview is not to "interpret" the Constitution but to rule rather Laws created by Government is Constitutional or not.

WE the People have allowed both Government and SCOTUS to decide what powers they have and they in turn have decided over and over that they can in fact expand those powers as they see fit.

So it's up to us to bring Government under control... Sadly that time has passed. With more and more people getting on the Government's gravy train there is no incentive for the "People" to get off.. Instead they will ride the Crazy Train until it all comes crashes to a halt.

And it will come to a halt.

It is inevitable.

We cannot support the collective weight of the masses piling on. The Engine of the train is the productive class and we are quickly approaching the maximum capacity of our ability to tow that weight.

It will come to a stop...

When it does only those of us that know how to be self-reliant will be able to weather the coming Storms. The rest will riot and burn and kill.

History has shown us this to be true.

We ignore it at our own peril.

stranger than f...
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How Orwellian: Government completely to abandon marriage

This is an interesting "outside the box" idea that government should completely divest itself of all issues surrounding marriage (particularly from a self-identified social conservative). How would it work for child custody, inheritance, decisions for someone who is disabled or near the end of life, etc.? Would everyone be required to name a "responsible party" to act as a spouse would in these cases? Would biological parentage meet all child custody and decision requirements? (I assume that parents would still have the right to raise their own children.) Would today's married couples be willing to give up their tax-advantaged status?

The idea is intriguing, but I'm unclear what the final product would look like. I assume that marriage would fall into oblivion for all but the religious or the old-fashioned. Even secular communists countries recognize marriage for the good of the state instead of some religious reason. What are the practical benefits of this arrangement other than granting equal tax treatment of all adults regardless of living arrangement?

I am very interested in your projections of how this would operate. It certainly is a drastic measure, but that does not mean that it lacks merit.

S. Lindsey
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It's simple stf...

...just show me where Government get's its authority to regulate or define what a marriage is?

Child support like inheritance and other "related matters" is a contractual issue..easily handled by the courts..

I am not saying marriage should not exist...just that Government has no standing in it..

States may regulate it....much like they do gun ownership and carry permits...BUT... they cannot define it nor can they tell a Church or a business that they MUST perform a service to someone whom they have a fundamental opposition to..

That is not if the Constitution is followed...

stranger than f...
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Removing government from marriage?

Again, it is novel in human history, but perhaps workable. If the government does not recognize marriage, no special rights would be afforded anyone based on relational issues. Any church could perform marital ceremonies for heterosexuals or homosexuals without state sanction or interference. It is very libertarian.

I can't imagine the social conservatives going along with it since it further removes society from biblical mandates and discourages official commitment to a spouse. A marital contract (for any who chose to go to the trouble) would have no more importance than a rental agreement. No more divorce courts, since there would be no assumption of responsibilities other than those specifically agreed upon by contract.

Mr. Lindsay, you have truly surprised me. What a radical idea!

S. Lindsey
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There are a lot of areas Government should not be involved in...

....Marriage is just one.

A truly free society does not need Government to define those freedoms. We have Natural Rights and those Rights are not assigned by Government nor can they be curtailed by Government.

The pursuit of Happiness is a basic Right. Two guys want to get married I have no heartburn over that. Where I do is when Government gets involved.

If I own a store and I don't want to cater to a gay couple wedding then it is my business and should have the right to refuse service... also if I wanted to cater to that clientele then that too is my right.

The FREE Market will work if Government let's it. A Shop that says no gays will either stay open or close based upon the Market...conversely so will a shop that says all gays etc...

Government cannot legislate morality nor can they legislate equality. All they can do is pass laws that restrict the Rights of some for the benefit of others.

That is not the purpose of Government. We have allowed them to redefine their purpose, however, and they set the rules.

That is not how our Country was originally setup.

WE the People will either regain our basic Rights without Government interference or WE will lose them and live under those rights that the Government decides are best for us..

Senator Pete Stark.. "The Federal Government can do most anything in this country"

Representative Massa: "I will vote adamantly against the interests of my district if I actually think what I am doing is going to be helpful".

Note he decides what is helpful and best for US...

The Constitution no longer restricts Government. Neither do WE.

NUK_1
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SL: You pretty much nailed it there

Well said!

I would disagree with you about it coming to a halt any time soon, though. It's inevitable that it WILL happen, but I am thinking a lot later than you are.

G35 Dude
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Lindsey-I agree

I pretty much agree with you on this topic!

Davids mom
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G35
Quote:

What they want is for companies to be forced to extend benefits to same sex partners

If they are legally married under the law in our country - why deny them the right of what all other married couples have? Taxes? Wow, is that the answer for everything that encourages unequal treatment in this country?

Nice try. Get the sheep to follow because it may cost them more money in taxes. Did it cost more money in taxes to stop the bad law of not allowing different races to marry in certain states? When schools integrated, citizens who paid property taxes to support public education had the choice to send their students to private schools. That additional cost was their choice. What citizens want in every state in our country is to be treated equally under the law. If the law regarding 'gay' marriage is bad law - correct it - without denying citizens their right to equal opportunity, justice, etc. under the law. We should have some leadership in Congress who can do this - oops - sorry, they are busy trying to figure out how to repeal Obamacare for the 39th time! Geez! The church has defined marriage. The government has certain guidelines for legalizing the contract. It's a contract between 2 citizens. The Old Testament states gender. We (the U.S.) don't do everything stated as 'law' from the Old Testament. The Court has ruled.

G35 Dude
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DM- Read THEN comprehend THEN respond!
Quote:

Taxes? Wow, is that the answer for everything that encourages unequal treatment in this country?

Do you ever read a post before you respond? Show me where I ever said ANYTHING about taxes. But since you believe all citizens should have what they want regardless of cost. I guess you favor polygamy too?

Davids mom
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G35
Quote:

What they want is for companies to be forced to extend benefits to same sex partners. When this happens these same companies will pass that additional cost on to us, their consumers. Are we ready for that? I've heard that 8-10% of the population is gay. Are you ready for a 10% increase in the price of everything you buy? Cars, houses, etc.

I'm sorry. Increases in the cost of services/products are usually implemented through additional taxes by state or federal governments/or increase in additional cost of the product. Now I'm probably wrong. But sometimes one has to do a little extended thought when reading 'words'. You did not have the word 'taxes' in your contribution.

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Justice Antonin Scalia: The Supreme Hypocrite

How interesting to read Justice Scalia’s dissent to the recent DOMA case before his court and discover that he is aghast that the U.S. Supreme Court would overrule laws enacted by duly elected members of the Legislative and Executive branches of government. He states, “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.” He implies that this court actually relied upon political motives in this terrible decision.

Now travel just a few years back with me to 2010 when Justice Scalia voted with the majority in Citizen’s United vs. FEC to overturn the Bipartisan Campaign Reform Act (i.e., McCain-Feingold) that had been duly passed by Congress and signed into law by President Bush. In its “assertion of judicial supremacy over the people’s Representatives in Congress and the Executive” his majority decision decimated campaign finance laws and changed elections forever against the will of Congress and the Executive. The political motive for this ruling is self-evident.

Around 3% of males and 2% of females in the USA are homosexual. Around 60% of eligible voters turn out for Presidential elections.

Guess which extreme court decision has been most prolific in flirting with tyranny. Perhaps when Justice Scalia removes the plank from his own eye, he can be more efficient in removing the specks out of the eyes of his fellow justices.

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It's an interesting SC opinion by Scalia

Everyone hates an "activist" SC ruling when it goes against their opinion, and loves the same so-called "activism" when it goes for them. This hasn't changed in a very long time.

I get where Scalia is coming from, but this part of the ruling:
"we have no power under the Constitution to invalidate this democratically adopted legislation" is rather laughable. One of the reasons the SC exists as a separate branch of government is to indeed overturn "democratically adopted legislation" if it goes against the Constitution. That's one of the functions indeed of the SC.

tgarlock
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Nuk, I would argue . . .

. . . that you misread Scalia on that point. Of course the SC has a role in striking down legislation that is unconstitutional, but I think what Scalia was saying is he didn't find any constitutional basis for striking down the legislation. He could have made his point more clear but he's way smarter than what it takes to make the distinction.

Terry Garlock

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Tough to say, Terry

I am not so sure that Scalia's SC views haven't changed sharply over the years. This opinion to me is contrary to several others of his that have run the gamut of "states DO have the right to institute race-based programs to make up for the effects of past discrimination"-which sounds like a wholesale justification for affirmative action-to "it's OK for states to ban sodomy" which is simply idiotic. Oral sex between any people regardless of male/female is considered "sodomy." I am not going into the details of how out-dated and just goofy that opinion is because it's a discussion best left off the Internet.

Not totally sold on Scalia's rationale here, but it doesn't matter, really. The SC is going to change in the future and we won't be having this discussion again because the trend is definitely going the other way from Scalia's, and it's not going to change. Incrementalism works and liberals and activists are well aware of it. It just seems to work a lot faster these days on an issue like gay marriage than in the past.

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Scalia's hot air

Hey, hey, hey, Scalia, how about states' rights? Don't the states have the right to decide who's married and who's not? Haven't you been preaching (or thundering, which you like to do a lot) about states' rights? Your dissent is just one long vent because the court's majority didn't go along with your always very catholic views.

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