Comments on: Lawrence, FAIR, Scalia, and the “Homosexual Agenda” http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Simon http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59959 Simon Tue, 21 Mar 2006 17:03:49 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59959 <blockquote>Scalia is actively changing the legal culture by injecting into it ideas that otherwise would not be there. And he knows it. He is not aiming simply to describe a historical incident; he is actievly playing a political game. And playing it well.</blockquote>As Lady Justice Arden put it, "<i>we must not forget that the dissenting opinion is often very valuable in the development of the law in the long term. Often, it contains the germ of an idea, which in a new generation will give forth to the large oak tree. So we should not underestimate the value of those dissenting judgements</i>."

Scalia is actively changing the legal culture by injecting into it ideas that otherwise would not be there. And he knows it. He is not aiming simply to describe a historical incident; he is actievly playing a political game. And playing it well.

As Lady Justice Arden put it, “we must not forget that the dissenting opinion is often very valuable in the development of the law in the long term. Often, it contains the germ of an idea, which in a new generation will give forth to the large oak tree. So we should not underestimate the value of those dissenting judgements.”

]]> By: Simon http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59958 Simon Tue, 21 Mar 2006 17:02:19 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59958 I agree with the other comments, most of which (entirely correctly, in my view) dispute that <i>FAIR</i> had much to do with homosexuals as a matter of law. However, it also bears noting that <i>Dale</i> is not really about homosexuals either; it is about association, and in that sense, actually <i>doesn't</i> take sides, in that it is of some utility to both sides. There's a marvellous video on C-SPAN where some spotty malcontent asks Justice Thomas - with heavy inference - how he would defend ("defend"! way to show your cards!) <i>Dale</i>, and after some thought, Thomas explains it in a way that just destroys the questioner. <i>Dale</i> was about the right of the Scouts to exclude people who sent a message the Scouts disapproved of; it has equal applicability to gays, communists, Republicans, people who are mean to cats and self-mutilators. But, Thomas asked the questioner, can a homosexual group refuse membership to a homophobe? Why, yes, replied his interlocutor. Why? Wondered Thomas. The spotty malcontent fumbled. His opponent on the ropes, Thomas pressed the point: could the NAACP exclude a member of the Ku Klux Klan? The spotty malcontent thought so. Why? Wondered Thomas. At this point, the penny dropped, audibly. In sum, I think it mischaracterizes <i>Dale</i> and <i>FAIR</i> as being decisions about homosexuality. To be sure, the homosexual agenda -- assuming that one exists, and I am suspicious of such blanket categorizations, as Justice Thomas of all people should appreciate -- may well have been the animating purpose in bringing the lawsuits (in both cases, I think there were entirely more seditious motives driving the decision to litigate), but as a matter of law, those cases are about very much more broad issues. I agree with the other comments, most of which (entirely correctly, in my view) dispute that FAIR had much to do with homosexuals as a matter of law. However, it also bears noting that Dale is not really about homosexuals either; it is about association, and in that sense, actually doesn’t take sides, in that it is of some utility to both sides. There’s a marvellous video on C-SPAN where some spotty malcontent asks Justice Thomas – with heavy inference – how he would defend (“defend”! way to show your cards!) Dale, and after some thought, Thomas explains it in a way that just destroys the questioner. Dale was about the right of the Scouts to exclude people who sent a message the Scouts disapproved of; it has equal applicability to gays, communists, Republicans, people who are mean to cats and self-mutilators. But, Thomas asked the questioner, can a homosexual group refuse membership to a homophobe? Why, yes, replied his interlocutor. Why? Wondered Thomas. The spotty malcontent fumbled. His opponent on the ropes, Thomas pressed the point: could the NAACP exclude a member of the Ku Klux Klan? The spotty malcontent thought so. Why? Wondered Thomas. At this point, the penny dropped, audibly.

In sum, I think it mischaracterizes Dale and FAIR as being decisions about homosexuality. To be sure, the homosexual agenda — assuming that one exists, and I am suspicious of such blanket categorizations, as Justice Thomas of all people should appreciate — may well have been the animating purpose in bringing the lawsuits (in both cases, I think there were entirely more seditious motives driving the decision to litigate), but as a matter of law, those cases are about very much more broad issues.

]]> By: Obvious Point http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59957 Obvious Point Tue, 21 Mar 2006 04:17:48 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59957 Sorry to make the legal realist Heisenberg Uncertainty Principle point here, but Scalia is obviously trying to push the court in a certain direction by exposing it to ridicule and criticism that otherwise would not be made. He is employing a tactic that Blackmun excelled at, but from the right. The fact that the Court has tacked to the right on gay rights may indicate that the Court has grown sensitive to much of the criticism that has come its way because of Saclia's stinging and plainly worded dissents. Do you know of any law professor who can teach a class on rights without discussing Lawrence and without taking seriously Scalia's dissent? No. Scalia is actively changing the legal culture by injecting into it ideas that otherwise would not be there. And he knows it. He is not aiming simply to describe a historical incident; he is actievly playing a political game. And playing it well. Sorry to make the legal realist Heisenberg Uncertainty Principle point here, but Scalia is obviously trying to push the court in a certain direction by exposing it to ridicule and criticism that otherwise would not be made. He is employing a tactic that Blackmun excelled at, but from the right. The fact that the Court has tacked to the right on gay rights may indicate that the Court has grown sensitive to much of the criticism that has come its way because of Saclia’s stinging and plainly worded dissents. Do you know of any law professor who can teach a class on rights without discussing Lawrence and without taking seriously Scalia’s dissent? No. Scalia is actively changing the legal culture by injecting into it ideas that otherwise would not be there. And he knows it. He is not aiming simply to describe a historical incident; he is actievly playing a political game. And playing it well.

]]> By: Todd Mitchell http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59956 Todd Mitchell Mon, 20 Mar 2006 23:55:31 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59956 In a similar vein, I hope you have seen this latest outburst from "El Nino": http://articleofaith.blogspot.com/2006/03/el-nino-sexual-orgies-ought-to-be.html Todd In a similar vein, I hope you have seen this latest outburst from “El Nino”:

http://articleofaith.blogspot.com/2006/03/el-nino-sexual-orgies-ought-to-be.html

Todd

]]> By: Jeremy Pierce http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59955 Jeremy Pierce Mon, 20 Mar 2006 19:18:02 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59955 Even aside from the points already raised, all Scalia was saying is that the Supreme Court had on this case given in to a culture largely on one side of this issue in what he calls the culture war. Even ignoring that some of the cases aren't really about gay rights, all he'd have to say is that the Supreme Court is becoming less largely given over to that agenda than it was in 2003 (which was three years ago, not two). Once you factor in the other issues, particularly the ones that clearly decided these cases for the liberal and moderate justices, he doesn't even need to modify his conclusion that much. But even if he did have to modify it that much, it doesn't mean he was wrong then, just that it's become less so since then. Even aside from the points already raised, all Scalia was saying is that the Supreme Court had on this case given in to a culture largely on one side of this issue in what he calls the culture war. Even ignoring that some of the cases aren’t really about gay rights, all he’d have to say is that the Supreme Court is becoming less largely given over to that agenda than it was in 2003 (which was three years ago, not two). Once you factor in the other issues, particularly the ones that clearly decided these cases for the liberal and moderate justices, he doesn’t even need to modify his conclusion that much. But even if he did have to modify it that much, it doesn’t mean he was wrong then, just that it’s become less so since then.

]]> By: Mark B. http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59954 Mark B. Fri, 17 Mar 2006 03:27:45 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59954 It's as a certain professor now at Yale, but who was a colleague of Scalia's 25 years ago at Chicago, said to me about the law professor profession (in 1991): All they're concerned about is whether you have the constitutional right to bugger your neighbor. <i>Lawrence</i> was the only case to address that issue directly. <i>Dale</i> and <i>FAIR v Rumsfeld</i> were, as other commenters have said, 1st Amendment and Article I-legislative power to raise armies-cases, respectively. And, even if Scalia's reference to the "homosexual agenda" is a bit over the top, his denunciation of the Court's anti-democratic decision is spot on. It’s as a certain professor now at Yale, but who was a colleague of Scalia’s 25 years ago at Chicago, said to me about the law professor profession (in 1991):

All they’re concerned about is whether you have the constitutional right to bugger your neighbor.

Lawrence was the only case to address that issue directly. Dale and FAIR v Rumsfeld were, as other commenters have said, 1st Amendment and Article I-legislative power to raise armies-cases, respectively.

And, even if Scalia’s reference to the “homosexual agenda” is a bit over the top, his denunciation of the Court’s anti-democratic decision is spot on.

]]> By: PD http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59953 PD Thu, 16 Mar 2006 23:12:37 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59953 I'm with JP re the FAIR case--not a gay rights case. There is a decent argument that Dale was not a gay rights case either, rather, a First Amendment case. Lawrence is the only of the three that deals directly with "gay rights"--ie the freedom to engage in homosexual activity. That one turned out exactly as pro-gay rights law professors wanted it to. Hence the scathing Scalia dissent. Can anyone seriously argue that Lawrence was the most important of the three to the gay rights movement? I’m with JP re the FAIR case–not a gay rights case. There is a decent argument that Dale was not a gay rights case either, rather, a First Amendment case.

Lawrence is the only of the three that deals directly with “gay rights”–ie the freedom to engage in homosexual activity. That one turned out exactly as pro-gay rights law professors wanted it to. Hence the scathing Scalia dissent.

Can anyone seriously argue that Lawrence was the most important of the three to the gay rights movement?

]]> By: MR http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59952 MR Thu, 16 Mar 2006 22:37:05 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59952 When you asked about whether it was factually true, I thought you were referring to the "culture war." Imagine that this was written 50 years ago, but instead the word "homosexual" was replaced with "black" (probably "Negro" then). The statements would seem pretty discriminatory today. When you asked about whether it was factually true, I thought you were referring to the “culture war.” Imagine that this was written 50 years ago, but instead the word “homosexual” was replaced with “black” (probably “Negro” then). The statements would seem pretty discriminatory today.

]]> By: MJ http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59951 MJ Thu, 16 Mar 2006 14:41:16 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59951 Apparently you didn't get the memo that FAIR v. Rumsfeld was not a gay rights case - it was a first amendment and spending clause case. The issue of discriminating against gays by the military was not challenged or argued. Calling FAIR a gay rights case is like calling Miranda a case about kidnapping and rape. Moreover, even if it was a gay rights case, to take a post hoc development like FAIR and impunge Scalia's 2003 assesment of the court's rationale IN THAT CASE is the equivalent of saying that Roper v. Simmons proves that the Rehnquist Court was pro-criminal defendant. Either a careless or deliberate misuse of ancedotal evidence; subjected to zero intellectual rigor. Apparently you didn’t get the memo that FAIR v. Rumsfeld was not a gay rights case – it was a first amendment and spending clause case. The issue of discriminating against gays by the military was not challenged or argued. Calling FAIR a gay rights case is like calling Miranda a case about kidnapping and rape.

Moreover, even if it was a gay rights case, to take a post hoc development like FAIR and impunge Scalia’s 2003 assesment of the court’s rationale IN THAT CASE is the equivalent of saying that Roper v. Simmons proves that the Rehnquist Court was pro-criminal defendant. Either a careless or deliberate misuse of ancedotal evidence; subjected to zero intellectual rigor.

]]> By: Dylan http://www.concurringopinions.com/archives/2006/03/lawrence_fair_s.html/comment-page-1#comment-59950 Dylan Thu, 16 Mar 2006 14:23:54 +0000 http://www.solove.org/archives/2006/03/lawrence-fair-scalia-and-the-homosexual-agenda.html#comment-59950 This is embarassingly facile. <em>FAIR</em> is quite easily characterized as an instance of the "homosexual agenda" crowd being more concerned with potential damage to broader civil rights. Prioritizing agendas doesn't mean the lower priority ones don't exist. As for <em>Dale</em>, Kennedy's record for "growth" and changing his mind (i.e., <em>Casey</em>) isn't exactly sparse. Either he was a latecomer to the homosexual agenda crowd, or he only held to it weakly and found some other cause more compelling, a situation that didn't arise in <em>Lawrence</em>. This is embarassingly facile. FAIR is quite easily characterized as an instance of the “homosexual agenda” crowd being more concerned with potential damage to broader civil rights. Prioritizing agendas doesn’t mean the lower priority ones don’t exist.

As for Dale, Kennedy’s record for “growth” and changing his mind (i.e., Casey) isn’t exactly sparse. Either he was a latecomer to the homosexual agenda crowd, or he only held to it weakly and found some other cause more compelling, a situation that didn’t arise in Lawrence.

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