Wednesday, June 26, 2013

No surprises from the SCOTUS

The problem I have with the SCOTUS ruling isn't that it's 'a victory for gay marriage'. It's that it's the result of the court pulling a 'right' out of thin air, once again. Instead of quoting from Scalia's dissent this time around, I'll just quote from his ruling about sex-exclusive schools - which I think sums up the issue adequately, again and again.

Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were--as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.

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