Fait Diver: “Normal Democratic Means”


The World’s Worst Newspaper is in Full Gush Mode

Next Civil Rights Landmark
Fifty-eight years after it banned discrimination in public education, the Supreme Court has set the stage for the defining civil rights decision of this era — agreeing to hear two cases challenging laws that define marriage to exclude couples of the same sex. To us, and a growing number of Americans, the right course seems clear: that the justices continue the march toward real equality. “

Oh my. Gone are the days of —


“In one of the cases, the justices will review a ruling earlier this year by the United States Court of Appeals for the Ninth Circuit, in San Francisco, which struck down California’s voter-approved ban on same-sex marriage.
The Supreme Court could leave California’s same-sex marriage ban in place, planting the court on the wrong side of justice and equality. Or, in the absence of a five-vote majority to establish a nationwide constitutional right to same-sex marriage, the Supreme Court could affirm the narrower approach of the Ninth Circuit panel, which was confined to California.
The appellate panel reasoned that Proposition 8, as the voter initiative was known, was unconstitutional because it stripped gays, lesbians and bisexuals of the right to marry declared by the State Supreme Court. Thus it harmed “the status and dignity of the members of a disfavored class.”
The second case the Supreme Court will hear is a challenge to Section 3 of the Defense of Marriage Act, the odious 1996 law that denies federal benefits to lawfully married same-sex couples. The case concerns Edith Windsor and Thea Clara Spyer of New York, who were married in 2007 in Canada.


“Because the Defense of Marriage Act did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse when Ms. Spyer died in 2009, she was required to pay some $360,000 in federal estate taxes from which opposite-sex spouses are exempt. The United States Court of Appeals for the Second Circuit, in Manhattan, sensibly said that violated the Constitution’s promise of equal protection. The ruling against the Defense of Marriage Act, the second by a federal appeals court, said laws treating same-sex couples differently deserve heightened judicial scrutiny, like other laws that single out minorities long subjected to discrimination.
These profound legal tests have reached the nation’s highest court at a remarkable moment. There has been a string of persuasive lower federal court rulings against the Defense of Marriage Act and the denial of gay people’s freedom to marry.”

An act created (leave us not forget) by


“A month ago, voters in Maine, Maryland and Washington State became the first to approve same-sex marriage at the ballot box rather than through courts or legislatures. Voters in Minnesota rejected a ballot measure that would have enshrined the state’s ban on same-sex marriage in the State Constitution.
Public opinion is shifting on this issue as more people recognize the inherent wrong in a last bastion of official discrimination. The most important hearts and minds to be won at this point belong to the nine justices.”

Well we know where two of them stand already. Fat Tony Scalia (seen here on a panel he shared with God)


and his poolboy


Open and Shut, ain’t it?

Well now, Sherman, it’s time to step into the Wayback Machine.


Let’s return to 2003 and Lawrence vs. Texas

Let’s examine a few pertinent passages from Fat Tony’s rant. He starts off by referring to other justices citing Roe in overturning “Homosexual Sodomy” in Lawrence

“This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery”

Mmmmmm — Hot Cross Buns!


There are of course tons of bakeries — but very few clinics offering abortion services. Scalia’s notion that the woman merely need go to “a neighboring state” (redolent of Senator Lieberman’s “short ride”) is grotesque and insulting.

Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause, 478 U.S., at 191—194. Noting that “[p]roscriptions against that conduct have ancient roots,” id., at 192, that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” id., at 192.”

Oh really? Then why did we build a gigantic monument to it?


I trust I’m not the only one who has noticed how much the Lincoln memoral resembles —


“It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized–which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.
I do not know what “acting in private” means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage.”

Well how about a movie?

“If all the Court means by “acting in private” is “on private premises, with the doors closed and windows covered,” it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)”

This of course is entirely what Lawrence vs. Texas was about. Did he actually read the case he was ruling on — or was he too upset by Teh Ghey to do so?

Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.
“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” Ante, at 5.
Of course the same could be said of any law. A law against public nudity targets “the conduct that is closely correlated with being a nudist,” and hence “is targeted at more than conduct”; it is “directed toward nudists as a class.” But be that as it may. Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.”

Homophobia is always “rational” in Fat Tony’s world.

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Did you say “tradition”?

“One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Or Just Too Entertaining!

“Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”

That is of course A HUMUNGOUS FUCKING LIE!!!!!!!!!

Fat Tony lives sleeps and eats animus. It’s his whole life. He is nothing without it.

” Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.”

And he “has the right” to block such views with every fiber of his being.

“That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change.”

Impatience is, needless to say, a virtue.

And now (at last!) Fat Tony gets to the point–

“One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’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. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.”

Michael McGough of the LAT nails it.

“In announcing Friday that it will hear two cases involving same-sex marriage, the Supreme Court did not include a statement from Justice Antonin Scalia saying “I told you so.” But the thought surely has crossed the conservative justice’s mind.
In 2003, when the court overruled itself and struck down laws against homosexual sodomy, Justice Anthony M. Kennedy was emphatic in his majority opinion that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” To which a peevish (and prescient) Scalia responded: “Do not believe it.”
Scalia went on: “Today’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…. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this court.”
I remember people mocking Scalia for this conjuring up of a “parade of horribles.” In 2003, mainstream opinion, even among supporters of gay rights, was that same-sex marriage was an issue for the future — the distant future, not a decade in the future. And truth be told, some people who considered themselves supporters of gay rights were happy about that seeming state of affairs. The notion that support for gay rights equates to support for gay marriage is a recent one.
But back to Scalia’s prediction: We don’t know how the court will rule on the constitutionality of Proposition 8 or the Defense of Marriage Act. (Or if will rule on the merits at all. It has left itself an out in both cases by asking attorneys to brief questions of whether parties challenging the two enactments have standing to sue.) But it’s notable that its 2003 decision in Lawrence vs. Texas, the sodomy case, was cited in both the decisions it has agreed to review.
Scalia called it.”

“Peevish” is most definitely the word.

But what of Heterosexual Marriage (not to mention Heterosexual Sodomy)?

A gay man named Michael Stewart had an answer back in 1977 in a show called I Love My Wife


Wiki sez:

“Born Michael Stuart Rubin in Manhattan, Stewart attended Queens College, and graduated from the Yale School of Drama with a Master of Fine Arts in 1953.
His early work was writing sketches for the revues The Shoestring Revue (1955), The Littlest Revue (1956), and Shoestring ’57 (1956, Barbizon-Plaza, New York). He then joined the staff writers of Sid Caesar’s television program, Caesar’s Hour.
He met Charles Strouse and Lee Adams in 1954, and several years after collaborated with them and Gower Champion on the 1960 Broadway musical Bye Bye Birdie.[1] He worked again with Champion and Jerry Herman, with their musical Hello, Dolly! opening on Broadway in 1964.
Bramble died on September 20, 1987 in New York City. Jule Styne said of him: “He was an extremely talented and knowledgeable man of the theater. He was one of the great musical-theater writers, and his string of hits showed that.” Stewart’s sister was writer Francine Pascal”

Michael Stewart, a dedicated supporter of heterosexuality, was gay and died of AIDS

So did one of the stars of I Love My Wife, Lenny Baker

Here are two numbers from the show — the second of which reflects my feelings as a 65 year old gay man.

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