Convicted of murder.

Sentenced to fifty years.

Fondly remembered in the Soonerverse.

~~~~~~

Tommy moved into his new digs last week so I rushed down to assist him in the unpacking and to practice a little light and legal sodomy. Of course you've heard the news about sodomy. The United States Supreme Court says Americans can make their own choices regarding sodomy and I say bully for that.

I am, however, most fascinated by Justice Scalia's opinion in dissent. I always pay attention to Scalia's dissents because I believe him to be a Cassandra figure on the Court. In Greek myth, Cassandra was the most beautiful daughter of King Priam of Troy. The god of prophecy, Apollo, mesmerized by her beauty, took her under his wing and taught her the art of prophecy in an effort to seduce her. Cassandra was a willing and eager student, but rejected Apollo's sexual advances, angering the god. He raped her and cursed her such that she was still able to accurately predict the future, but no mortal would believe her predictions. So, when the Trojan Horse was wheeled inside the gates of Troy Cassandra knew immediately that it meant defeat for her city and death to her father, but her warnings went unheeded and she was forced to watch events unfold exactly as she had predicted.

Justice Scalia is hardly beautiful enough to catch the eye of a god,

but his opinions in dissent very often accurately predict the future and his vitriolic rhetoric is a direct reaction to his inability to make us understand the peril he sees. Let me give you an example.

In 1988, during the Reagan administration, the Court decided the case of Morrison v. Olson, 487 U.S. 654, which was a Constitutional challenge to the Independent Counsel statute. Following the Watergate scandal the nation was forced to face the question of what to do if the President, the chief executive and the official in charge of the police powers, were him/herself suspected of a serious crime? As chief executive, the President could simply order no investigation to commence, or fire those investigating Presidential misconduct and quietly cover up dastardly deeds. The Congress reacted to this question by creating a new office of an independent counsel, an investigator charged with investigating high ranking executive branch members suspected of wrongdoing but who answer not to the President, but to a panel of three judges from whom the independent counsel derives its authority.

It was argued that the Constitution does not permit the creation of this office because it syphons executive power away from the President in whom executive authority is granted. However, the Court took a pragmatic stand acknowledging the conflict, but ruling that the statute was narrowly tailored enough to fall within power that overlapped between the Executive and the Legislative branches citing the Constitution's appointments clause.

The lone voice of dissent was Justice Scalia.

He wrote that under the statute, an

independent counsel is selected, and the scope of his or her authority prescribed, by a panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad--and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result--the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration�there would be no one accountable to the public to whom the blame could be assigned.

It's a blow for blow description of the Kenneth Starr investigation of Whitewater, or more specifically of President Clinton, a president Starr was politically opposed to, written six years before Kenneth Starr's appointment as independent counsel.

Creepy.

There are, of course, many more examples of this in the bombastic lexicon of Scalian dissents. Not least of which is Scalia's scathing dissent in Romer v. Evans, 517 U.S. 620 (1996), a case in which the Court struck down an amendment to the Colorado Constitution forbidding municipalities from enacting discrimination protections based on sexual orientation. In the very first paragraph of his dissent, Scalia describes exactly how the Romer ruling undermined Bowers v. Hardwick (a 1986 case ruling a Georgia prohibition on sodomy Constitutional) despite the majority opinion's insistence on the contrary. He laid out the case that would be made to overturn Bowers, the case that ultimately found success in Lawrence v. Texas, the recent sodomy decision.

In matters of civil rights the Court has defined three levels of scrutiny to which they will subject a challenged law. The greatest level of scrutiny is strict scrutiny, which is the test used when the law in question regulates matters of race, national origin, or fundamental rights. Fundamental rights are limited to rights declared fundamental by the Court, rights like the right to procreate. The entirety of specific rights included here are murky and fluid and the subject of great debate. It is virtually impossible for a government program subject to strict scrutiny to stand.

Second is intermediate scrutiny, which is applied when government attempts to discriminate based on gender or illegitimacy and restrictions that place an incidental burden on free speech. Again, it is very difficult for a law to withstand this level of scrutiny, but not impossible.

Third is rational scrutiny, or the rational basis test. Everything else falls under this test. It is very difficult, but not impossible, to successfully challenge a law based on rational basis, because it must be proved that there was no rational relation between the action taken and a legitimate interest of the state.

Lawrence v. Texas, the most recent sodomy case, was decided by applying the rational basis test. The Court held the state had no legitimate interest in regulating what consenting adults do in the privacy of their own bedrooms and therefore laws criminalizing sodomy must be struck down. See? Not impossible. But the Court took great pains to ensure it was clear that the sodomy law was being struck down under this low level scrutiny and that there was no fundamental right involved.

The Holy Grail of Gay Rights Activism in the Unites States is a ruling by the Court that choices involving sexual orientation are fundamental rights, and that laws discriminating against homosexuals must therefore survive strict scrutiny by the Court. This is so because it would make it virtually impossible for any law discriminating against people based on sexual orientation to stand just as it is virtually impossible for laws discriminating on the basis of race to stand.

There are more than 1000 federal rights and benefits that hitched heteros receive that gay people can never receive. And this does not take into account the hundreds of state rights and benefits available to married people. These rights affect property, probate, taxes, parenting, hospital visits, education, social security, welfare, unemployment, evidence that can be used against you in court, and benefits for victims of crimes to name but a few. Therefore if laws forbidding gay people from accessing these rights on the basis that they are gay people were tested under strict scrutiny, they would fall, making gay marriage all but inevitable.

Until last week I was of the opinion that such a ruling was not achievable.

But then I read Cassandra's dissent. Scalia dedicates pages to proving that what the Court actually did, despite it's protestations to the contrary, was to make sodomy, and gay sodomy in particular, a fundamental right. Pages! And then, most incredibly, he lays out pages of material decrying the decision as the basis on which the Court will have to rule that gay marriage must be recognized.

I was flabbergasted.

Of course, he also lays out how this decision could completely undermine Roe v. Wade and other privacy protections, but let's leave that aside for now. I'll play the role of a Trojan on that issue and bury my head in the sand.

God, that was preachy.

Posted at 1:24 p.m.

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