Wednesday, 3 July 2013

A necessary dissenting opinion

At First Things, there is an insightful On the Square column, focusing on a dissenting opinion on the  U.S. Supreme Court bench with regard to same-sex marriage - to summarise somewhat inelegantly, it's about liberty, stupid! 
Mr Justice Antonin Scalia's opinion unmercifully  exposes the dangers to freedom and the right not to conform inherent in both the kind of legislation and judge-made law now appearing throughout the western world.
Here are a few excerpts (the first is a quotation from Mr Justice Scalia himself) - but read the whole article here:
"....In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. [It is to] “dis-parage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race...."    
 "....Scalia’s passionate opinions flow from his pen like lava, seemingly indiscriminate, but nevertheless finding every curve and crevice of what lies before them. Often referred to as the “most conservative” of the Supreme Court jurists, Scalia spends part of his Windsor dissent arguing in defense of what used to be considered a most “liberal” notion: that human beings have a right to express their point of view without fear of reprisal; a right to dissent from conventional wisdom; a right, even, to be wrong. It is a sentiment that free-thinkers (of even the recent past) would often express by quoting Evelyn Beatrice Hall’s summary of Voltaire’s thinking: “I disapprove of what you say, but I will defend to the death your right to say it.”
Kennedy’s opinion makes it clear that the days of defending the freedom of others to think and speak outside of the ever-narrowing corridors of what is permissible are numbered; the line of delineation he sketches out is stark, bare, and singular: there will be one (correct) thought or there will be Bad People.
Whether the Bad People who argue for tolerance of their own viewpoints will remain “full and equal citizens, etc” remains to be seen. A recent Department of Justice memo on Gay Pride Month chillingly suggested otherwise when it instructed employees to be vocal and visible in their support because, “silence will be interpreted as disapproval,” even if one does not especially disapprove. The threat of payback for perceived disapproval did not need spelling out....."

The full text of Scalia, J.'s  dissenting opinion is here on a link to a pdf file, beginning at page 35 - or page 55 if you prefer to skip some of the American constitutional / legal 'technicalities' - but it's well worth trawling through the document to find it.
Here's another taste:
"...By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority armswell every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity”of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides.Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight..."

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