Thursday, March 29, 2012

Scalia's "Lawrence v. Texas" dissent pops up in front of me on YouTube


On a moderately positive note, let’s start by noticing the Maryland voters are almost split on gay marriage, with only a slight majority opposing, should there occur a referendum this November.

Because of Google’s new policy of consolidating user’s browsing and searching experiences, YouTube showed me a clip of Justice Scalia’s dissent in the 2003 opinion “Lawrence v. Texas” striking down the Texas sodomy law.  I am reading Dale Carpenter’s book “Flagrant Conduct” so some of what follows is a preview of what his book surely takes up.


The seven-minute “speech” is painful listening for me.  I feel I am somewhat the target of the animus referred to as a proper subject of the “political process”.  Scalia, toward the end, makes the link between decriminalization and gay marriage, which Rick Santorum jumps on in his 2005 book.

I could say that Scalia’s reasoning is a sequence of canards.  The most unsettling idea is that the public may criminalize private (essentially unprovable) adult consensual conduct out of “moral disapproval” alone, without explanation of the substance (other than interpretations of religious scriptures) behind the “morality”.  Scalia says that “moral disapproval” overrides ideas of “discrimination” and does mention the previous ban on open gays in the military (I had forgotten that he mentions DADT this way).

It has always perplexed me that, when I was coming of age, people were more concerned about homosexuality than its opposite, unwanted pregnancy (and marital infidelity).  That may be a temporal issue.  When one is in the “early” years, one isn’t a “threat” yet to make unwanted babies. But one might not be catching on to his “share” of societal duties, sometimes related to gender, expected for the overall welfare of the group.  This sort of thinking is more common in poorer communities, or smaller tribal societies or any societies that believe they face common external threats and dangers and therefore needs to demand loyalty, biological and otherwise. 

And I was somewhat the pariah as I grew up because I was physically behind in gender-related matters.  I felt that others believed I could be a burden on the safety of the group, and could not share risk and responsibility for its defense.  That’s partly what the military draft was all about.  But I actually served in the Vietnam era Army without incident.

In his book, Santorum tried to tie the idea of “no fault freedom” to declining birth rates in many countries and a purported inability of a culture to sustain itself.  When one is growing up, one tends to learn about the things expected of him or her to keep his community going, before he or she learns more about making specific choices that can have specific consequences.  “Morality” at first seems to comprise shared obligations and risks.  One could imagine Victorian laws about sexual morality as partly intended to express (or act as a proxy for) the idea that everyone does his part in raising the next generation and caring for the previous.  In the most extreme forms, as with Vatican teachings, “sexuality” is reserved only for someone who makes a commitment an opposite-sexed adult to raise a family together, and, even more important, who is capable of winning such a commitment from an opposite sex person.  (Those unable to do so remain subservient to those who “succeed”; but the prohibitionistic moral system is supposed to give everyone a fair "chance".)  Yes, that guarantees a kind of “fairness” and keeps things at a local level (the way conservatives want). It also supports authoritarianism and patriarchal culture. It makes jealousy (which I have avoided) a necessary part of life.  Is this what Scalia really means by this vague idea of “morality”?

Scalia admits that social mores change with time, and perhaps appropriately so because of technological change and greater political stability.  He claims he has no problem with overturning the Texas law through a political process.  But he is willing to allow majoritarian emotional prejudices prevail over reason, to protect the old-fashioned and not so logical “social capital” behind family life.  In my case, it may be a little logical: since I was an only child, my parents lost all chance for a lineage, for their 45 years of commitment.
What a sobering seven minutes.



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