A Stitch in Haste

...You did remember that today is the fifth anniversary of Lawrence v. Texas, right?

Since I complimented Justice Scalia in the Heller case, let me restore balance in the universe by quoting his disgraceful dissent in Lawrence:

Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized -- which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition."
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Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
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Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
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Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change.

I suppose, given that we are only figuring out the Second Amendment today, that such an "analysis" about the Ninth and Fourteenth Amendment can be forgiven. Maybe.

In any event, the contradiction between Heller's Scalia and Lawrence's Scalia is Justice Scalia's, not ours. He -- or legal historians -- will have to work it out for themselves.