Thursday, April 13, 2006

"I Kiss Boys"

Scalia visit sparks protests by gays at U. of Connecticut

The idea to set up a same-sex kissing booth in protest of Antonin Scalia's appearance on the campus of the University of Connecticut strikes me as inspired. (Though the prospect of a third-year law student wearing an "I Kiss Boys" t-shirt does raise my fear of people making the jump from gay to pedophile, as fear-mongers so often do.)

What I found most interesting about Scalia's appearance, though, is the phrasing he chose in defending his cramped view of the Constitution:
"You can't take the position that these words are expandable in one direction and not expandable in the other," he said. "They obviously meant to set some standards to control future generations."
Contrast this with Anthony Kennedy's words in the Lawrence v. Texas decision:
"As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."
Kennedy's words allow the Constitution to be viewed as containing a right to privacy, as forbidding segregation and racial discrimination, and as a document that can breathe the air of the present rather than the musty fumes of a time long since past. Scalia's mean he should be wearing a powdered wig on the bench. Which, come to that, might be an improvement. But they also mean that he believes that the dead should exert power over the living. Certainly, we respect the wisdom of those who have come before--witness the texts we read in schools--but do we really wish to be ruled by those who have not seen what we have seen? Surely there are those antediluvians who would wish that nothing would ever change--we call them Republican primary voters--but this cannot be the view of the majority, can it? Can it?

While Americans may pay little heed to what the Supreme Court does on a day-to-day basis, I believe that in the main they are comfortable with the idea that nine people, appointed for life, are observing the direction of the nation and helping to guide its progress. It may be anti-democratic at times, but sometimes democracy allows for tyranny that only a body like the Court can fix.

As the nation ages, this will become more, not less, important. Elderly holdouts on issues like gay marriage could be voting for another thirty years or more thanks to medical advances, and while I do not wish them ill health, I do wish that we could move forward as a society long before they and their voting patterns are in the grave. The proposed marriage amendment is an instance of Scalia-style thinking--let's lock in our beliefs now so that when we're gone, those we leave behind are ruled by them. As long as that amendment fails, though, I hope the Court will one day, in the not-too-distant future, look around and see that the time has come for this step on the road of progress and freedom.

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