I've been reading Justice Scalia's dissenting opinion on Lawrence v. Texas. His logic is quite good and I can say nothing against it. Basically, he lays out what the reasonable and logical consequences of the decision are and then rails about them. Personally I think that is a miserable way to construct law. It's like a spoiled child that can't make the case for getting what he wants and just throws a tantrum instead.

Scalia is right in that the Lawrence decision puts a reversal to the Bowers decision after only a mere 17 years. He is right in that one would hope that the Court would not be that inconstant. But the fact that he can not face is that Bowers was a flawed decision and it needed to be set right. In Bowers the court ruled that the states had the right to forbid certain sexual acts among consenting adults. In Lawrence the Supreme Court faced a natural consequence of the Bowers decision and found that it was objectionable. This demonstrated the flaws in the Bowel decision that Scalia simply refuses to accept. He posits that there may be consequences of the Lawrence decision that will be equally unpalatable.

Let's see what those might be and judge for ourselves.

” State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. "

It is reasonable to me that these state laws are absurd and they should be called into question. It's about time. The majority opinion describes this as an "emerging awareness".

Scalia argues that the only rights that are protected by the 14th amendment are those that have a long tradition in this country. It took an amendment to eliminate slavery. I think only an amendment would convince Scalia that discrimination based on sexual orientation should be eliminated. Maybe he's right. Basically he is saying that we have always discriminated against homosexuals and lacking explicit language in the constitution otherwise we should be allowed to continue such discrimination. [Common decency is not a consideration unless you happen to agree with him on what that constitutes that decency.]

Scalia complains that the Lawrence decision means the end of the legislation of morality. Personally I hope that he is right about that. The legislation of morality has always been repugnant to me.

Scalia rightly points out that the Lawrence decision makes laws limiting marriage to opposite-sex couples at risk. He succumbs to the irrational fear that same-sex marriage will somehow bring some imagined harm to opposite-sex marriage. Just because you believe it don't make it so, Tony. Give us some evidence, please. He even tries to put words in Justice O'Connor's mouth by twisting her assurance that traditional marriage is a legitimate state interest into a equivocation on her part. In Scalia code-talk "preserving the traditional institution of marriage" means moral disapproval of same-sex couples. But I think Sandra is not into that kind of code-talk and simply means what she says. Traditional marriage has nothing to fear from any relaxation of homosexual discrimination.

It's clear that Scalia thinks that homophobics are in the majority in this nation and until they are defeated at the polls and old, generally ignored, portions of the penal code are actively purged of discrimination the Supreme Court should stay out of this fight. Somehow I don't think he would be so passive if he were bucking traditional prejudice instead of preserving it.

In fact it may turn out that Scalia is more correct than the framers of the majority opinion that this decision bring same-sex marriage closer to a reality in this country. This case may be like the one in Canada in which the court was "backed-in" to accepting same-sex marriage because that's where the logic of their decisions led them. May such logic prevail here as well.

I think the majority actually tried to soft-pedal the probable consequences of the decision while Scalia (much to his chagrin) actually has them right.