Barney Frank courts a little controversy.
Barney Frank is a fucking moron. You'd think a Harvard Law grad would know a little bit about how the Supreme Court works and Constitutional Law, but I guess evey barrel has its rotten apple.
That's the important part, but read on if you want to hear me nitpick.
Actually, that part is just dicta within a dissent and can largely be disregarded since it has no legal ramifications. Its largely just Scalia pontificating on what he feels is the incorrect method by which the other Justices came to their majority opinion.
I think based on the writing you can take it as Scalia's personal opinion that anti-discrimination laws that protect homosexuals are unnecessary and unwarranted.
Scalia's opinion is at least partially grounded in reality. Sexual orientation isn't a protected class in Constitutional Law, meaning they shouldn't receive special privileges from a Constitutional standpoint. That said, state law and private action is allowed to be more protective than the Constitution, so the AALS is allowed to have such protective provisions in place.
More importantly, however, in that phrase Scalia isn't saying that his personal opinion is that such provisions are unwarranted. He's saying that those provisions have created a culture in law schools (and by extension, were in place where the other Justices studied/taught law) that protect sexual orientation, and that this culture of protection has caused the other Justices to give protection to homosexuals that isn't based in the realities of Fundamental Rights or Equal Protection jurisprudence. Whether or not Scalia is correct here is up for debate (personally, I never really encountered such a culture or agenda).
Scalia strikes me as slightly disingenuous here, but more importantly he's openly contemptuous of attempts to change the law concerning homosexuals through lawsuits.
Technically, his contempt is deserved. The point of courts is not to change or create laws, but to interpret laws (this includes the ability to strike down state laws that run contrary to federal law, and strike down federal and state laws that run contrary to the Constitution). Scalia does seem to forget, however, that using the courts to strike down a law isn't necessarily changing a law so much as asking that law to be removed completely. Once that law is stuck down, an attempt to re-engage the legislative process can and should be used to make a law that doesn't overstep its bounds.
So Scalia presumably believes that discriminating against homosexual conduct (and the people who engage in it) don't count as discrimination because most Americans agree with those positions.
Actually, what Scalia is doing is setting up the reasoning behind the Texas law as part of a Rational Basis test. The key thing to remember is that a law, even a discriminatory one, is
okay so long as it passes the appropriate standard of review. Since Scalia does not agree with the court that homosexuality is an exercise of Constitutionally protected "liberty," the test he applies is rational basis--the law must be rationally related to a legitimate state interest.
Scalia's statement here is his argument that laws that protect morality are a legitimate state interest, which is correct.
He's also criticizing the majority opinion on its use of "discrimination" because discrimination does NOT have any play at all under "fundamental rights" Due Process protection, and thus should not even enter the equation.
Texas should be allowed to make the laws it wants.
As long as they aren't Unconstitutional and do not preempt Federal laws...yes. It's called the police power of the states.
So get this straight. Laws discriminating generally against homosexual conduct in many states constitute evidence of the will of the American people and must be considered by the court when determining if something is legally discrimination. But a marked lack of laws barring the very thing in question (only 4 states at the point had laws specifically barring homosexual sodomy) apparently only constitute evidence of the homosexual agenda at work, and need not be considered.
You're taking the assumption that this case hinged on discrimination, that is an Equal Protection claim; it did not. The only Justice who found an Equal Protection violation was O'Conner, and she was alone on this. The case was decided on a fundamental liberty claim. As such, discrimination does not enter and should not enter the picture.
What Scalia is doing by going into the history of anti-sodomy laws is an attempt to undermine the majority's contention that homosexual/sodomy acts are a fundamental liberty. Part of the test of a determining if something is a fundamental liberty is that it should be an act that has had some degree of protection or encouragement. By mentioning laws in many states that banned homosexual acts for decades, Scalia is making the point that homosexual
has not been protected and in fact has been banned until recently. Such evidence, to Scalia, is enough to show that homosexual acts are not a fundamental liberty as defined by previous case law.
