Perhaps the homosexual movement pushed the issue too hard, too soon from a strategic point of view as far as public acceptance is concerned.

What the public accepts matters little now however, since the Supreme Court has made it impossible to do anything about it.

I still would go back to the Romer decision in 1996 as being the pivotal case. In that decision the Court ruled unconstitutional a ballot initiative approved by the voters in Colorado that had merely prohibited any state or local ordinances that granted preferential treatment to homosexuals. Justice Scalia’s blistering dissent is worthing quoting in part:

“…the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged “equal protection” violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.”

Referring back to the now overturned Bowers case, he went on: “Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct.”

And finally, with regard to the rights of the people to effect their views on this matter through the legal system: “I do not mean to be critical of [recent homosexual] legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as are the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well.”

Well, not since 1996.

After Romer, this was the inevitable next step.

Scalia wrote in Romer (1996):

”…the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged ‘equal protection’ violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness.”

Realizing that Scalia’s conclusion, that “our constitutional jurisprudence has achieved terminal silliness,” has indeed been borne out, I had an Ayn Randian thought: shouldn’t Scalia have resigned from the bench? In a system in which jurisprudence is a joke, why continue to grant it any legitimacy by one’s continued participation in it? If conservatives really stopped giving any support or cover to the present fraudulent jurisprudential system, wouldn’t it be exposed all the more quickly for what it is, and collapse?

Mr. Auster’s comment is redolent of Tom Bethell’s column in the current American Spectator, in which he speculates about what would happen if Catholic bishops actually took doctrine seriously and threatened to excommunicate politicians who, for example, incessantly shilled for abortionists. How, really, could the politicians retaliate? And it would be no small thing for Ted Kennedy or John Kerry to authentically fear excommunication …

We can dream, can’t we?

Yes. His continued efforts on the Court would be of much less value to traditionalists than his presence in a campaign of speaking out about Mr. Bush’s complicity in the Constitutional fiasco the Court has become. He’s going to be beating his head against the wall for the rest of his life on the Court. If any Justice dies, another liberal will be appointed whether or not Mr. Bush is re-elected in 2004. Such efforts by Justice Scalia could lead lower court judges to start ignoring the Court’s foolishness and could cost Mr. Bush the election in 2004.

My sympathies also lie with Mr. Cella’s additional idea concerning abortion (which he must know the Court legalized in Roe v. Wade by conjuring some rights our mystical forefathers had hidden for two hundred years in the Constitution’s penumbras and spirit). There is the risk many Catholics would leave the Church and perhaps join the legions of those that hate the Church for one reason or the other, but there seems no other way around that issue. But then I am not a Catholic theologian.

Mr. Murgos:

A delicate situation, no doubt. J. Bottum has a fine essay on this topic in the current Crisis.

http://www.crisismagazine.com/julaug2003/feature2.htm

It’s one of those questions of principle for which a clear answer isn’t evident. And in a way it points to an apparent dichotomy in Mr. Auster’s statements on whether we continue to believe that things can turn around or should recognize that for all intents and purposes the game is over. (“Shine, perishing republic.”)

If we convince ourselves of the former, perhaps he would do well to stay on and keep up the fight. If we are indeed on course for judgment, which I tend to believe, then perhaps resigning would be wiser, bringing a more speedy conclusion to the inevitable.

PMurgos has an interesting point, but I don’t see how Justice Scalia would really be more effective off the court than on. His audience would be limited in that case; only a few receptive. On the Court he can still exercise a substantive influence. But again, I think it depends on which side one falls in the matter above.

“And in a way it points to an apparent dichotomy in Mr. Auster’s statements on whether we continue to believe that things can turn around or should recognize that for all intents and purposes the game is over.”

I admit to the dichotomy. It is a tension I move in, as the philosopher moves between the poles of the Platonic metaxy. The tension is not resolvable. It is, at least for the time, a condition of our political being.

And believe me sir, when I say that I lean toward the belief that it’s over I do so in the fervent hope that I’ve never been more wrong.

Here are the thoughts of a Catholic lawyer about some of the questions raised in this thread:

A lawyer looks at Justice Scalia:
Justice Scalia is a very able, and constitutionally honest, lawyer. The Supreme Court is exactly where he belongs. There is nowhere else in the law where he can have the effect he does. If he were to retire, and even if one of our PC law schools were to give him a professorship, he would become far more obscure than he is today, no matter what he might say or write. Scalia should stay on the Court.

A Catholic looks at the American bishops:
Their failures are legion. Most American bishops are complicit in the destruction of Catholic faith and observance. Too many are guilty of covering up (and several of participating in) sexual scandal. Even though they open themselves up to charges of hypocrisy, their basic duty is expounding Catholic doctrine to Roman Catholics. Our bishops should warn all Catholic politicians that taking political actions to make abortion available is flouting the Church’s teaching, and that they do so at the risk of excommunication. The bishops should offer offending pols the opportunity publicly to change their position on abortion. Those who refuse should then be excommunicated.

The answers to the inevitable cries that the Church is violating (the Supreme Court’s spurious interpretation of) the First Amendment are simple. The First Amendment states what the Congress shall not do, not what the Church may not do. The Church is not forbidding abortion advocates to participate in politics, but making clear that Catholic politicians cannot support abortion in the political arena and remain in full communion with the Church. People excommunicate themselves through sinful action. Episcopal anathemas merely acknowledge what they have done.

Such a stand by the bishops would be salutary. I suspect far more Catholics would applaud their defending Catholic principles than would be “driven out” of the Church by their inflexibility. HRS

The poll’s indication of “a return to a level of more traditional attitudes last seen in the mid-1990s” is particularly interesting to me. Around 1997 the liberal (but always interesting) sociologist Alan Wolfe published “One Nation, After All,” a study of attitudes on politics and morality among groups of middle-class people in selected areas around the country. Wolfe found that this cross section of both liberal and “conservative” Americans all had the relativist attitude of “I believe in right and wrong, but I don’t want to impose my values on others” with regard to all issues, with one notable exception: homosexuality. There, traditional attitudes still prevailed. Wolfe regretted the exception, since he wanted Americans to become liberal relativists across the board. Well, that was in 1997, and since then, as we know (and Wolfe has written about this as well) societal attitudes have continued to “evolve” in Wolfe’s preferred direction. But now, if this poll is accurate, we are back where we were when Wolfe wrote his earlier book.

I hope no one misunderstands me. My thought about Scalia doing a “John Galt” was just that, a thought. I’m not proposing that Scalia resign from the bench.

But I cannot dismiss the basic plot idea of Atlas Shrugged, which is as relevant to our time as when it was written; and I do entertain the dark thought at times that it might be better if conservatives simply withdrew from the scene and let the liberals wreck everything and thus bring liberalism to an end, rather than staying around and mitigating the evil effects of liberalism with decent principles, and so help keep the liberal machine running.