MEDITATION NUMBER THREE
On “Rational Basis Review”

Rational basis review, that is, weighing the interests of the individual versus the interests of the state, is the standard that the Supreme Court uses to decide the Constitutionality of laws that do not infringe on “fundamental rights.”

(Aside: here, Scalia claims to not know what “acting in private” means—this is very troubling and suggests that he has absolute contempt for the concept of privacy rights.)

In order to show that Texas’ anti-sodomy law survives rational basis review, Scalia compares gay sex to other actions that, even though sexual in nature, are not gay sex: prostitution, adult incest, adultery, obscenity, child pornography, and bestiality (echoing Republican Senator Rick Santorum’s “man on dog” scenario fears). In other words, the state has an interest in its citizens’ morality. Scalia ignores that there are some perfectly good reasons that are not moral in nature for prohibiting most of his example behaviors. For instance, prostitution is often very harmful to the women involved, both physically and emotionally (although it seems that there is a better argument to be made for legalizing and regulating prostitution, but I digress); incest can result in offspring with severe birth defects; child pornography is child abuse; bestiality is animal abuse. Never does Scalia demonstrate a state’s actual need for anti-sodomy laws; he simply implies that such laws may provide a sense of moral comfort for people who don’t like homosexuals—all Scalia really establishes is that the state regulates some sexual activities.

Well, duh.

Scalia’s defense of government’s ability to regulate its citizens’ morality evokes a troubling question: what morals should the state embrace? I’m sure that Scalia’s personal opinions are fairly obvious; it is clear that he prefers traditional morals—that is to say, Christian morals. Indeed, Christian morals are the traditional default choice of American morality legislation, of American politics. For instance, it has long been known that a candidate who does not declare that he is a Christian cannot be elected President—once he’s in the Oval Office, he must then publicly show his adherence and devotion to Christian morals, or there can be dire consequences. Most politicians feel the same pressure. The result is that the vast majority of US politicians give, at the very least, lip service to Christian values. Legislation and policy implementation reflect this political-Christian imperative. That’s why most of the time, morality legislation in America has a decidedly Christian slant. The net effect is that forcing Christian morals on citizens is ultimately the same thing as forcing religious values on citizens, a clear violation of the First Amendment in spirit, if not actually in law.