Wednesday, February 25, 2004
Re: LOCKE V DAVEY
I took at sneak peek at Scalia's dissent in NYT... and this statement jumped at me.
``The indignity of being singled out for special burdens on the basis of one's calling is so profound that the concrete harm produced can never be dismissed as insubstantial,'' wrote Scalia, the father of a Catholic priest.
At the risk of being accused of being obsessed, I am going to make a comparison now to his dissent in Lawrence v Texas last year:
"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation."
Now, dictionary.com defines "calling" as "The strong attraction or appeal of a given activity." Now, Justice Scalia does not mention any "higher" calling in his Davey dissent (doing so might force him to spell out just why Theology is a higher calling than, say, optometry).
How then, could a minority, who have a strong attraction to an act that the majority deems unacceptable, be called to bear the burden of proof that their action do not constitute harm to the society (which is effectively what rational basis holdings demand)? And in arguing this, let not any one try to demean the importance of sex in our lives - so many rulings - starting from Griswold - have upheld the importance of that "calling."
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