Prejudice and Precedent
June 29, 2000
rule, the U.S. Supreme Court is constitutionally wrong even when it
promulgates a desirable result. The Court has now struck down a warped
New Jersey law requiring the Boy Scouts to accept homosexual
It was an outrageous, tyrannical law.
Like most civil rights laws, it actually denied a genuine and
basic civil right the right of association. If youre not free
to choose your own company, youre not free. The term civil
rights has become an Orwellian euphemism for compulsory
Yet that law, like many bad laws, was
perfectly constitutional. The federal government has no authority to say
New Jersey cant force the Boy Scouts to accept homosexuals.
Thats one of the infinite number of powers that are reserved to the
states. Its up to the people of New Jersey to control their own
Even the four dissenters objected on
the wrong grounds. Justice John Paul Stevens defined the issue as one of
tolerance and prejudice, deeming it quite
proper to force the Scouts to associate with people who perform sexual
acts the Scouts deem immoral. Why? Because the Scouts have never
officially defined themselves as an anti-homosexual organization.
This is really absurd. Until recently,
it could be assumed that homosexuality was among the innumerable things
most people implicitly disapprove of, and there was no need to spell it
out. On the contrary, it was considered so base that it didnt have to
be condemned overtly. When the Scouts were founded, more than a century
ago, homosexuality, the love that dare not speak its name,
was, like pedophilia, necrophilia, and bestiality, unmentionable in polite
Nobody supposed that if you delicately
avoided condemning such vices by name you were committed to tolerating
them. Many moral traditions are, necessarily, tacit. If the Scouts
dont formally proclaim themselves opposed to kidnapping, must
they accept kidnappers as scoutmasters?
Stevens wrote: That such prejudices are still prevalent and that
they have caused serious and tangible harm to countless members of the
class New Jersey seeks to protect are established matters of fact that
neither the Boy Scouts nor the Court disputes. Whoa, there! The
words prejudices and harm beg the question; these are not
at all established matters of fact. Obviously the Boy Scouts
would reject Stevenss formulation; thats why they took the
matter to court. They dont consider their moral views
prejudices, and they dont think they
harm anyone by disapproving of his sexual conduct.
Justice Stevens didnt even
refer to the Constitution and the reserved powers of the states. He argued
solely from his conviction that there is nothing wrong with homosexuality
and that anyone who thinks otherwise is guilty of prejudice.
You are prejudiced if you dont share Justice Stevenss
prejudice a fine specimen of liberal reasoning.
In yet another judicial usurpation of
the powers of the states, the Court ruled that Nebraskas law
against dreadful partial-birth abortions in which
the brain is sucked from the skull of a viable child on the verge of birth
places an undue burden on a womans right to
abort. The Court has committed itself to the notion that abortion is a
constitutional right, so now its majority feels it must defend any form of
slaughter that occurs before actual birth, even an agonizing and sickening
form of killing that hardly qualifies as abortion (and is too much even for
The wonder is that there are human
beings depraved enough to inflict such cruelty on a helpless child.
Its only slightly less wondrous that there are justices callous
enough to bless it and confused enough to think it can be constitutionally
The Constitution has no more to do
with the Courts opinions than the Book of Revelation has to do with
the Unitarian Church. The Courts opinions are based solely on the
Courts opinions. In these cases it refers not to the text of the
Constitution, but to its own previous, and dubious, rulings.
But a new ruling, when its
derived from older and erroneous rulings, is bound to go further astray
than the precedents it appeals to. So the Court keeps getting crazier and
crazier, and ever more remote from the Constitution.
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