9 comments

1. This is a great reminder, and Scalia is the perfect messenger for it. I’ll add a personal recollection: He himself magnificently embodied the combination of dignity and grace with his legendary disagreements with, among many others, Nadine Strossen (ACLU) and Ruth Bader Ginsburg (colleague on SCOTUS). Back in 2008, I got to lead a visit to the Court for the Air Force Secretary and Chief of Staff. Scalia met with us privately for 30 minutes and was his usual brilliant, gracious self.

   His dissents are written for the ages. My favorite is his prescient 1988 zinger in Morrison v. Olson. He was the lone dissenter in a point of view (against the Independent Counsel Statute that threatened Executive power) that later became the majority view. Just one paragraph illustrates his way with words. A sentiment I have referenced a lot over the years… sometimes the wolf comes in sheep’s clothing, but sometimes the wolf just comes as a wolf:

   “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

   Reply ↓

2. re RSC and AP: Thank you so much for this article, and especially for re-posting it at this time. I think it is important to contend for truth, precisely because we are asked to contend for him who is the truth.
   This article is apt personally at this moment, Wednesday, 21 January, 2026. The two of us and a handful of others are facing disagreeing to a damnable – I am convinced – theology being promoted by a very likeable and official figure. We believe it is a matter of the essential pillars of the Gospel “once for all to the saints.”

   Reply ↓

3. During my undergraduate college years (1966-70, “The Swinging Sixties,” though I was a plodder, not a swinger) the most common phrase one heard during discussions was, “As Voltaire said, ‘I disagree with what you say, but I will defend to the death your right to say it.'”

   Needless to say, that sentiment has vanished without a trace.

   NOTE: OK, I know that quotation is only attributed to Voltaire. He may never have said it. We were young. What did we know.

   Reply ↓

   • Frank,

     I so enjoy your comments! LOL. I remember those days. They do seem to be long gone.

     Reply ↓

4. R.S. Clark wrote: “We have reason to fear that our culture is coming to a place, to a point, where we are no longer going to be allowed to disagree because all disagreement will come to be considered impolite or unacceptable or not nice.”

   GW: I think we have been heading in this direction as a culture for a long time, and that we are pretty much there already. However, in our current cultural climate there seems to be one exception to the idea that “we are no longer going to be allowed to disagree”: People are free to vocally, publicly, even viciously, disagree with any consistent form of historic Christianity, and thus Christians are not allowed to hold nonbelievers (of whatever stripe) to the principle that “you are not allowed to disagree with me.” We orthodox Christians are not going to be allowed to “disagree” with the secularists, homosexualists, “diversity” promoters, etc., lest we “dehumanize” them; and we may even possibly face legal sanctions in the future if we do. But that Christians may be “dehumanized” by the emotive, irrational disagreements of unbelievers does not seem to be of concern to them. The double standard is plain as day, and when we run up against this kind of emotive, irrational thinking we do well to humbly, gently, yet firmly remind our logically-challenged unbelieving partners-in-dialogue of their double standard and hypocrisy.

   Reply ↓

5. It’s ironic that rationalism leads to the dehuminzation of the intellect, i.e. irrationalism, divorcing it from history and lingual coherence. God has not merely acted upon the mind, but in history. He does not only work through the invisible power of the Spirit upon the heart and mind, but through the message of the death of Christ and the empty tomb. “Plato let Socrates ask, ‘What is good?’ But Moses’ question was: What does God require of thee?” Christ answers both. But the answer comes in form of word revelation. A revelation that requires lingual coherence, coherence that requires the mind to register what one is actually saying. A coherence that is only possible in the acknowledgement of history as God responded to the needs of his people merely of grace, recovering a true humanity.

   Reply ↓

   • Hey Aaron!

     Outstanding! Where did that boy go to seminary? Must be a fine school indeed. 🙂

     Reply ↓

6. I just happened to read a Scalia dissent today that was on point. Scott, I think you would greatly enjoy reading Scalia dissents. It’s a little long, but it further explains Scalia’s position in the article you linked.
   _____________
   It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny”); [15] Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [*590] to preventing demonstrable harms”); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683 , 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”); [16] Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid. (plurality opinion); see also id., at 575 (SCALIA, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy [***534]indeed.” [**2491]478 U. S., at 196 .2

   …Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual actsor, for that matter, display any moral disapprobation of themthan I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [*604] by the people, and not imposed by a governing caste that knows best.

   Reply ↓

   • Thanks MM.

     But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.

     Reply ↓

This site uses Akismet to reduce spam. Learn how your comment data is processed.