MEDITATION NUMBER TWO
On “Fundamental Rights”

Because I’m not a lawyer, I’m a bit out of my element on this one, but I wanted to make a brief comment. Scalia states that the right to engage in sodomy has not been established as a “fundamental right,” and, therefore, cannot be considered in terms of due process rights.

Well, okay.

A “fundamental right” is, by precedent, a right that is “deeply rooted in the history and tradition” of the United States.

I think that I agree that sodomy is not a right that is “deeply rooted in the history and tradition of the United States.” However, it ought to be. That the American Psychology Association long ago determined that homosexuality (and therefore gay sodomy) is perfectly normal and healthy human behavior, is something that some human beings do without harm to themselves or others, appears to be irrelevant to the law, or, at least, Scalia’s view of the law. It also appears to be irrelevant to Scalia that the single most influential social force in American life, television, for some years now, has been representing homosexuality in a favorable light: public attitudes, in fact, have changed radically since Bowers. I think it is fair to say that homosexuality (and by extension, sodomy) is now deeply rooted in, at the very least, the tradition of the United States, if not its history.

But what do I know? I’m no lawyer.

Perhaps we need a Constitutional amendment to guarantee our privacy rights, what with guys like Scalia out to harpoon them from the bench. Then again, Scalia isn’t really a “strict constructionist” all the time; maybe, one day, he’ll use a little “judicial activism” to strengthen our rights.

Nah!