Amanda Black
Exam Essays
Fall Quarter
12/5/2007
Scalia explains his dissenting opinion to the overturning of Lawrence v. Texas by comparing the case to Roe v. Wade in three areas. He looks at stare decisis, fundamental rights, and legal moralism.
There are three things that need to be proven before the court can overrule a decision in regards to stare decisis. 1) Its foundations have been eroded by subsequent decisions; 2) it has been subject to substantial and continuing criticism; 3) it has not induced individual or social reliance that counsels against overturning it. The court ruled that all of these requirements have been met in Bowers; therefore they overturned Lawrence v. Texas.
The court now claims that Planned Parenthood …show more content…
He says, "state laws against bigamy, same-sex marriage, adult incest, prostitution, masterbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices." Without Bowers set as a precedent, many laws lose their foundation. If Roe would be overturned, however, people would not lose their right to abortion; it would just give the states a choice to legalize it or not, according to Scalia. If a woman wanted an abortion, she could go to a nearby state if her state did not offer it. He makes this comparison, because if the court will overturn Bowers, a case Scalia sees as having significant societal reliance, then they should overturn Roe. It seems that Scalia is correct when he says that many of our moralistic laws will be called into question with the overturning of Bowers, but I do not see where that is as big of a problem as he says. I see that the courts would be very busy, but I think many of our laws governing morals are unjust. There are reasons why things like bestiality and adult incest should be illegal that are not simply because of morals. Bestiality is abuse to animals, which is against another law, and adult incest results in problems with the babies. I do not feel that the government has a right to prohibit activities for purely moral reasons, as Scalia seems …show more content…
A fundamental right must be something "deeply rooted in our Nation's history and tradition." At first, the court said that sodomy has been prohibited since the thirettn states ratified the Bill of Rights, which is strong evidence that sodomy is "deeply rooted in our Nation's history and traditions." The court now says that there is an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Scalia says that an "emerging awareness" does not qualify as "deeply rooted in our Nation's history and tradition." He also points out that we still have laws prohibiting bigamy, prostitution, obscenity, and child pornography, which restrict a persons right to make their own choices in their sex lives. He finds the courts claim to be totally hypocritical. In my opinion, sodomy is a fundamental right, and it is "deeply rooted in our Nation's history and traditions." It may have a history of being illegal, but it is not the government's right to restrict sodomy based purely on morals. Bestiality and adult incest, as I mentioned before, have other reasons to illegalize them. Sodomy affects no one, other than those participating, and the government has no concrete reason to prohibit
Exam Essays
Fall Quarter
12/5/2007
Scalia explains his dissenting opinion to the overturning of Lawrence v. Texas by comparing the case to Roe v. Wade in three areas. He looks at stare decisis, fundamental rights, and legal moralism.
There are three things that need to be proven before the court can overrule a decision in regards to stare decisis. 1) Its foundations have been eroded by subsequent decisions; 2) it has been subject to substantial and continuing criticism; 3) it has not induced individual or social reliance that counsels against overturning it. The court ruled that all of these requirements have been met in Bowers; therefore they overturned Lawrence v. Texas.
The court now claims that Planned Parenthood …show more content…
He says, "state laws against bigamy, same-sex marriage, adult incest, prostitution, masterbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices." Without Bowers set as a precedent, many laws lose their foundation. If Roe would be overturned, however, people would not lose their right to abortion; it would just give the states a choice to legalize it or not, according to Scalia. If a woman wanted an abortion, she could go to a nearby state if her state did not offer it. He makes this comparison, because if the court will overturn Bowers, a case Scalia sees as having significant societal reliance, then they should overturn Roe. It seems that Scalia is correct when he says that many of our moralistic laws will be called into question with the overturning of Bowers, but I do not see where that is as big of a problem as he says. I see that the courts would be very busy, but I think many of our laws governing morals are unjust. There are reasons why things like bestiality and adult incest should be illegal that are not simply because of morals. Bestiality is abuse to animals, which is against another law, and adult incest results in problems with the babies. I do not feel that the government has a right to prohibit activities for purely moral reasons, as Scalia seems …show more content…
A fundamental right must be something "deeply rooted in our Nation's history and tradition." At first, the court said that sodomy has been prohibited since the thirettn states ratified the Bill of Rights, which is strong evidence that sodomy is "deeply rooted in our Nation's history and traditions." The court now says that there is an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Scalia says that an "emerging awareness" does not qualify as "deeply rooted in our Nation's history and tradition." He also points out that we still have laws prohibiting bigamy, prostitution, obscenity, and child pornography, which restrict a persons right to make their own choices in their sex lives. He finds the courts claim to be totally hypocritical. In my opinion, sodomy is a fundamental right, and it is "deeply rooted in our Nation's history and traditions." It may have a history of being illegal, but it is not the government's right to restrict sodomy based purely on morals. Bestiality and adult incest, as I mentioned before, have other reasons to illegalize them. Sodomy affects no one, other than those participating, and the government has no concrete reason to prohibit