November 03, 2005

My Advice to the Gay Community

Don't worry about facts: lock and load!

Posted by Attila at November 3, 2005 01:50 PM | TrackBack

It's all part of the gay community's coordinated if curious strategy to follow the black community in walking the plank right off the political spectrum

Posted by: beautifulatrocities at November 3, 2005 03:56 PM

The difference being that the Dems use the black community as a source of votes, but regards gays/lesbians as a source of cash.

So it isn't like they can't tell the difference.

(Did you see the admission near the end of the article wherein it's fleetingly states that one of Alito's decisons had the effect of protecting a boy who was being gay-baited in a public school? No doubt Alito woke up on the wrong side of the bed that day.)

Posted by: Attila Girl at November 3, 2005 04:04 PM

Well, I'd say, given Alito's record, it is very likely that he would vote to overturn Lawrence v Texas. Lawrence being the most significant gay rights victory of the last, oh, 20 years, I'd say that gays have a reason to be a tiny bit concerned.

Posted by: Christophe at November 7, 2005 03:59 PM

And you base this prediction on . . . what?

Posted by: Attila Girl at November 7, 2005 06:30 PM

Let me ask a question first, and I'll promise to answer your original question:

Do the states, under the US Constitution as it exists at this moment, have the legal ability to outlaw specific sexual activities based on the activity or sex of the people performing it? (Setting aside Lawrence for the moment, of course.)

Posted by: Christophe at November 7, 2005 07:43 PM

No. I cannot see how one can justify any of the states prohibiting private consensual noncommercial behavior between adults.

I believe it's a unconstitutional overreach; I do not see how the State (or state) has a legitimate interest in this.

Posted by: Attila Girl at November 7, 2005 11:17 PM

OK. We agree. The question is, would the court?

Lawrence's dissenters were Scalia, Thomas, and Rehnquist. I have to observe that Alito is much more in their mould than in, say, Souter's. Scalia's dissent was particularly scathing (really, I used to admire Scalia, but he's becoming more than a bit cranky and irrational).

Of course, no one knows how Alito would vote on a case that relied on Lawrence as a precedent. If Alito is the kind of judge he appears to be, he might not even really know, since the case hasn't been presented yet. (Of course, my very own industry may give them the opportunity, in the form of Extreme Associates, since the US District Court in LA found that current obscenity law and Lawrence were incompatible. I'm not quite sure I see the reasoning, there, but I'm not a judge.)

Scalia, Thomas and Rehnquiest felt that, regardless of whether or not sodomy laws are good public policy, they are within the constitutional power of the state to enact. (Thomas, for example, pretty much said that he thought sodomy laws were bad public policy; from Scalia's dissent, in which he compared the laws against to sodomy to the laws against pederasty, I have to conclude he's more confortable with them.)

Alito strikes me as a judge who will be, if not a red-meat Orginalist, one who will view the doctrines that lead us from Griswold to Lawrence with plenty of suspicion.

As previously noted, I don't think Alito is a nut-case. I didn't think Rehnquist was a nut-case either (I have, ah, how shall we say, more nuanced opinions of Scalia and Thomas). But he does seem inclined to read the Constitution very narrowly, and a very narrow reading makes it hard to sustain Lawrence (or Griswold, or, yes, Roe, which is of course the ghost at this particular banquet).

Posted by: Christophe at November 8, 2005 08:35 AM

Of course, to overturn Lawrence, both Roberts and Alito would have to "vote" to do so. Another justice would have "flip." And then the very recent precedent of Lawrence would have to be overturned.

It sounds to me like a rather startling scenario.

Posted by: Attila Girl at November 8, 2005 10:40 AM

And then the very recent precedent of Lawrence would have to be overturned.

True, but Lawrence itself overturned a relatively recent precedent in the form of Bowers (as Scalia made sure everyone was quite aware). These things do happen.

Again, I'm not frothing at the mouth about Alito. The Supremes are, in fact, not nearly as important in the grand scheme of America as activists on either the right or the left make it out to be. And while O'Connor concurred on Lawrence, it was for different reasons than the rest of majority, so it's not entirely clear that the base votes have "changed."

But it's also not nuts to be concerned about Alito if you subscribe to the penumbra theory of rights.

Posted by: Christophe at November 8, 2005 11:01 AM

I'm still curious if you have specific cases of Alito's that lead you to believe he'd overturn Lawrence.

Posted by: Attila Girl at November 8, 2005 11:23 PM

No, but I don't think that's necessary to have concerns. It's a bit like asking a governor of a state, as a candidate for President, has a good track record in the conduct of a war. The Supreme Court is fundamentally different from every other court in the US, and the range of cases and the type of decisions are far different from that of any other court. Some surmise is always required, unless the judge just happened to be on the path of a hot button case; few are so cursed.

The only specifically gay-rights related case that he's voted on is Saxe, and that was a nuanced ruling that I happen to agree with (nose held, but I still have to agree with it). It had zero to do with the legal reasoning underlying Lawrence.

Remember, the question of Lawrence is not (setting aside what Scalia would clearly like it to be) "is sodomy a good thing the state shoudl promote?" but "is it within the state's power to restrict it?" (SoCons, I've noticed, do tend to confuse those two issues, assuming that everything allowed by the state must be perforce endorsed by it.) Alito has shown considerable deference to the legislature when it comes to gray areas, in the same line as Thomas and Scalia.

But we're not going to know for sure until the inevitable challenge to Lawrence reaches the court.

He has certainly not shown any particular friendless towards the rights of those accused of a crime. To me, that's a much bigger red flag, since if the US Constitution is about anything, it's about the rights of people who dissent from or are in trouble with the state.

Posted by: Christophe at November 9, 2005 10:04 AM

Clarence Thomas' dissent on the sodomy ruling was clear that were it up to him as a voter, he would vote against it. But that wasn't the question, only whether it violated the Constitution. States regulate all sorts of private behavior - they can tell you who you can have sex with (someone 18 but not 17), where, under the influence of what substances, whether you can pay someone for sex, etc.

The 'right to privacy' is a Humpty Dumpty right. (from Alice: "When I use a word, it means exactly what I want it to mean, nothing more, nothing less.") Somehow, it's never construed to mean you have the private right to own a gun, for instance.

As a homo myself, I have no problem with the legislature deciding such things, & that goes for abortion rights too. I don't agree with Prop 73, but a majority of Californians do. I'm far more concerned about runaway courts than runaway legislatures.

Posted by: beautifulatrocities at November 9, 2005 02:41 PM

One also has to remember that there are those of us who want the reasoning behind the decision to be sound, and actually think that's more important than the decision itself.

That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there.

Then if the law sucks we can work on our Federal, local, and state legislators to change it.

Another way of saying it: I don't want someone who agrees with me. I want someone who's intellectually honest.

Posted by: Attila Girl at November 9, 2005 04:53 PM

I'm far more concerned about runaway courts than runaway legislatures.

So, what's your view on Bush v. Gore?

That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there.

No problem. My disagreement with Alito (as I far as I can tell) is not about his politics, so to speak. I disagree with what I perceive as his interpretation of the Constitution, and feel that he will take too narrow an interpretation of the rights granted therein.

And let us not kid ourselves: Justices do work backwards from outcomes. Thomas does it. Scalia does it. I don't think that the platonic ideal of a completely results-free judge exists.

Posted by: Christophe at November 9, 2005 07:13 PM

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