Sunday, July 5, 2015

test number 7

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Thursday, July 2, 2015

The Three S's: Sodomy, Soothsaying and Scalia

Never in our full life could we hope to do such work for tolerance, for justice, for man’s understanding of man, as now we do by accident.

—Bartolomeo Vanzetti, Letter to his son

Call it prescience. More especially since, as he makes abundantly clear, he would never in a million years, have anything to do with such an outcome. He simply, in his role as soothsayer, saw it coming.

It goes back 12 years to the case of Lawrence v. Texas. How that case should come out would have seemed by some to be a no-brainer rather than, as Antonin Scalia suggests in his vigorous dissent, a hare-brainer From the perspective of 2015 it seems almost incomprehensible (unless you think like Justice Scalia) that in the early part of the 21st Century the state of Texas would go all the way to the U.S. Supreme Court to defend Sec. 21.06(a) of the Texas Penile [not sec] Code. That statute made it a crime for two persons of the same sex to engage in certain intimate sexual conduct that was offensive to Texans. The conduct of the individuals whose appeal the Court heard were adults and the proscribed conduct giving rise to the case was private and consensual.

Many of my readers would, upon reading the language of the statute, dispose of it in only a few words since it is absurd on its face and completely out of touch with modern times. Most adults think that what goes on in private between two consenting adults concerns the participants and no one else. Anyone thinking that way has not, of course, considered Justice Scalia. Not only is he firmly in the corner of the bedroom peepers but he shows his allegiance to their cause in somewhat more than 6000 words. In those words, however, he demonstrates a foresight that would take 12 years to be realized.

In describing the evil inherent in striking down a statute that bans sodomy in the home among consenting adults he suggests such a criminal statute is no different from laws “prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery.” Only someone with Justice Scalia’s keen intellect would spot the similarity between sodomy in the bedroom between consenting adults and baking bread.

His wisdom is felt throughout his dissent. It is at the conclusion of his 2003 dissent, however, that Justice Scalia’s prescience is manifest. It is there he said that: “Today’s opinion (that tells Texas to get out of the homosexuals’ bedrooms) 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 purpose of proscribing that conduct. . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution. . . .” If he got nothing else right in his 2003 dissent, he at least got that part right.

In Obergefell v. Hodges announced on June 26, 2015, the majority of the Justices concluded that the right of homosexuals to marry is enshrined in the United States Constitution. Justice Scalia, for whom nothing has changed in 12 years, was distressed. In his dissent he observes that when the Fourteenth Amendment was ratified in 1868: “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. . . . We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.” He then observes, however, albeit in somewhat convoluted fashion, that since “the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.” A reasonable translation of the foregoing suggests that individual states and not his colleagues should be the ones to decide whether or not to recognize marriage between non-heterosexual couples

Always a defender of what people thought in earlier times and the importance of crediting their views, he describes as singularly offensive that his colleagues’ think that “every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriage in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. . . . These Justices know . . . . that an institution as old as government itself [marriage], and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.” Those observations suggest that Justice Scalia neither believes in, nor approves of, evolution.

In a footnote commenting on the majority opinion Justice Scalia says the Court has “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” A fortune cookie found by Justice Scalia would contain a one-word aphorism: “Balderdash.”

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Friday, June 26, 2015

Words of Comfort from the NRA?

Such as do build their faith upon the holy text of pike and gun.
— Samuel Butler, Hudibras

It is always a good idea to avoid making judgments about events involving guns until the NRA has had a chance to join and guide the discussion. That is because the NRA is more familiar with guns than many of us and is, therefore, in a better position to comment on events of note that involve the use of guns. It is also better able, if the events are tragic, as they almost always are, to make proposals as to how future tragic events involving guns can be avoided.

Out of a sense of delicacy (for which the NRA is well known), it often waits a while before commenting on gun inspired violence lest it respond before it has all the information. Thus, for example, following the Newtown school massacre that took place Friday December 14, 2012, the NRA issued a statement December 18 in which it said: “[W]e were shocked, saddened and heartbroken by the news of the horrific and senseless murders in Newtown. Out of respect for the families, and as a matter of common decency, we have given time for mourning, prayer and a full investigation of the facts before commenting. The NRA is prepared to offer meaningful contributions to help make sure this never happens again.” Three days later, the full investigation of the facts having been completed to the NRA’s satisfaction, Wayne LaPierre, its Executive vice president and CEO, held a press conference. He suggested that to avoid future tragedies Congress should “put armed police officers in every single school in this nation.” As of this writing that suggestion has not been implemented and since it might require close to a million guards to protect all the schools in this country, it is unlikely that it ever will be.

Following the tragic events in Charleston, South Carolina last week, many words were spoken about the tragedy and the contribution made by guns to the events that took place in that city. President Obama said what many were thinking.: “At some point it’s going to be important for the American people to come to grips with it [gun violence] and for us to be able to shift how we think about the issue of gun violence collectively.” Americans for Responsible Solution, the groups with which Gabriella Giffords is associated, echoed the president’s words: “Once again, a senseless act of gun violence has brought terror, tragedy and pain to one of our communities.” As meaningful as those words were, however, the final commentator on matters involving guns is always the NRA and while grateful to the president and others for their thoughts, we are nonetheless waiting to hear from the NRA. It has not officially responded to the church murders as of this writing.

Echoing comments made by the NRA after Newtown, its spokesperson, Jennifer Baker, said that the NRA would have nothing to say, “until all the facts are known.” One NRA board member, however, did not need to wait for all the facts to come in since he knew what the most salient fact was. Charles Cotton is a Houston lawyer and board member of the national NRA. He explained that responsibility for this tragedy lay on one of the victims. He said that “Eight of his [state senator Clementa Pinckney] church members who might be alive if he had expressly allowed members to carry handguns in church are dead. Innocent people died because of his position on a political issue.” Jennifer Baker commented on Mr. Cotton’s observation saying, “Individual board members do not speak for the NRA.”

It is not possible to know what Wayne LaPierre will say if and when he holds a press conference to help the country get through this latest gun inspired tragedy. It is entirely possible that he will suggest that to insure the safety of worshippers, armed guards be placed in every church in the nation. It is unlikely, however, that he will comment so soon after the tragedy on the effect it will have on NRA membership. That effect, if history is a guide and Mr. LaPierre is to be believed, is that its ranks will swell. At the annual meeting of the organization held in 2013, Mr. LaPierre told attendees that following the Newtown and other shootings that had occurred during the preceding 6 months, membership in the NRA increased by 500,000. He said that: “By the time we’re finished, the NRA must and will be 10 million strong.” He did not explain what the word “finished” meant and there is some question as to whether or not his description of the size of the organization or its growth is in fact accurate. Nonetheless, it does seem to be true that following these tragedies, gun sales to members of the public increase sharply. The buyers and the NRA apparently believe that the solution to acts of violence committed by people carrying guns is acquisition of guns by the rest of us-a sort of “the more the merrier” approach. Those whose lives have been ruined by the errant gun do not consider that solution to be a merry prospect. Quite the contrary.

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