CA Voters - What you can do to repeal Prop 8 in 2010

[essentialsaltes]

Sign the Petition to get it on the ballot. Even if all you can do is to print out the PDF, sign it yourself, and mail it to their offices, that's a stamp well spent.

Comments

Re: 2012

[ian-tiberius.livejournal.com]

First of all, challenging me to agree with Antonin Scalia is dirty pool. :-)

My disagreement with that second part of your quotation from Scalia's dissent is relatively simple. Recall that the decision in Lawrence is predicated on the due process clause, not equal protection. (Writing for the majority, Justice Kennedy called the appeal on equal protection grounds a "tenable argument" but declined to base any part of his decision on it.)

In reading Justice Kennedy's opinion, I am struck by how often he makes the point that Lawrence is about private conduct. Early in his opinion, he writes "Their penalties and purposes [of the laws he is overturning], though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

In his conclusion, he uses similar language: "It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."

Over and over again, he makes it clear that his position is essentially that the government has no significant interest in whether or not two people participate in homosexual activity, and therefore no right to infringe their privacy to prevent it from happening. Marriage, by contrast, is a public action with extensive legal ramifications. (All the more reason to grant it to same-sex couples; but not all the more reason to classify it as a private matter in which the government has no significant interest.) Scalia is mischaracterizing Justice Kennedy's opinion, which is clearly predicated on the question of what the government may take a legitimate interest in.