June 25, 2022
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Rewriting History

Rewriting History

Pretend for a moment that itโ€™s 1973, and I am a Supreme Court justice.ย  In Roe v. Wade, seven of my colleagues have concluded that a woman has an unfettered โ€œrightโ€ to abort her child.ย  The justification for this right found by my fellow justices is that the unborn child is not a person under the Constitution.ย  Consequently, the child has no constitutional right to life.

In my dissenting opinion, I excoriate my colleagues for bending over backwards to find a right of privacy where one does not exist.ย  I mock Justice Blackmunโ€™s attempt to find this so-called right in โ€œthe Fourteenth Amendmentโ€™s concept of liberty or in the Ninth Amendmentโ€™s reservation of rights to the people.โ€

I conclude my dissent with this sentence: โ€œIf we follow the logic of this Court that there is a constitutional right to killโ€™s one child in the womb and thus regard the child as no more than mere property, then what is to prevent parents from killing the child after birth, or selling the child to the highest bidder, or, if so desired, from eating the child?โ€

We fast-forward ten years.ย  A couple in Texas is arrested, accused, tried, and found guilty of cannibalizing their four children, a crime prohibited under Texas law.ย  An attorney then sues the state of Texas, asserting that the state has no right to interfere in the coupleโ€™s right to dispose of their property as they see fit.

The federal judge who hears the case rules against the state of Texas.ย  In his decision, he partly justifies his action by referring to my concluding sentence above, thus totally misreading my intention.ย  One might conclude that the judge is either devious or just plain ignorant.

Ridiculous? Farfetched? If you think that, consider what Federal Judge Orlando Garcia did when he recently overturned the Texas ban on homosexual marriages.ย  To bolster his decision, Garcia used this quote from Supreme Court Justice Antonin Scalia in his dissent in Lawrence v. Texas (2003): โ€œ[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising โ€˜the liberty of the Constitutionโ€™?ย  Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.โ€ย  It certainly sounds as if Scalia is arguing for homosexual marriage.ย  But he was doing nothing of the sort. In fact, he was mocking the Courtโ€™s decision and its absence of logic.

Lawrence v. Texas involved two men (Lawrence and Gardner) who were arrested and found guilty of homosexual behavior.ย  The case was appealed to the Supreme Court, which overturned the Texas anti-sodomy law.

Writing for the majority, Justice Anthony Kennedy declared, โ€œThe petitioners are entitled to respect for their private lives.ย  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.โ€ย  The Court held that consensual sexual conduct was protected by the Equal Protection Clause of the Fourteenth Amendment.

Scaliaโ€™s dissenting opinion took his colleagues to task for judicial malfeasance.ย  He chastised them for obvious bias:

Todayโ€™s opinion is the product of a Court . . . that has largely signedย on to the so-called homosexual agenda, by which I mean the agendaย promoted by some homosexual activists directed at eliminating theย moral opprobrium that has traditionally attached to homosexualย conduct.

Scalia continued his attack by condemning the Court for its obsession with finding discrimination where none exists:

It is clear . . . that the Court has taken sides in the culture war,ย departing from its role of assuring, as neutral observer, that theย democratic rules of engagement are observed.ย  Many Americansย do not want persons who openly engage in homosexual conductย as partners in their business, as scoutmasters for their children,ย as teachers in their childrenโ€™s schools, or as boarders in theirย homes.ย  They view this as protecting themselves and theirย families from a lifestyle that they believe to be immoral andย destructive.ย  The Court views it as โ€œdiscriminationโ€ which it is theย functions of our judgments to deter.

From there, Scalia reminded the Court that the United States mandates that individuals who engage in, or intend to engage in, homosexual acts in the Armed Forces must be discharged.ย  (Keep in mind that Scalia wrote this in 2003, prior to the executive order that changed this policy.)ย  He also pointed out that the Court ruled in 2000 that the Boy Scouts had a constitutional right to exclude homosexuals.

Scalia then correctly pointed out that homosexuals have every right to try to persuade their fellow citizens to change laws that criminalize homosexual behavior.ย  But then he added:

But persuading oneโ€™s fellow citizens is one thing and imposing oneโ€™sย views in absence of democratic majority will is something else . . . What Texas has chosen to do is well within the range of traditionalย democratic action, and its hand should not be stayed through theย invention of a brand-new โ€œconstitutional rightโ€ by a Court that isย impatient of democratic change . . . it is the premise of our systemย that those judgments are to be made by the people, and not imposedย by a governing caste that knows best.

In Lawrence, the Court added this disclaimer: [The present case] โ€œdoes not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.โ€ย  Scalia wrote, โ€œDo not believe it . . . Todayโ€™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.โ€ย  A sentence later, Scalia wrote the words expropriated by Judge Garcia.ย  Of course, the judge skips the next sentence, which clearly showed Scaliaโ€™s contempt for the Courtโ€™s decision: โ€œThis case โ€˜does not involveโ€™ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decision of this Court.โ€ย  Scalia could see where the Courtโ€™s decision would lead, and he knew it would be dangerous for the nation.

On February 26, the Huffington Post ran this headline: โ€œHow Scalia Helped Screw Texasโ€™ Case Against Gay Marriage.โ€ย  Judge Garcia took two sentences out of context and used them for his own agenda.ย  Shame on him.ย  And shame on the Post for promoting the same agenda with shoddy and misleading journalism.

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Written by
Thomas Addis

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