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|Subject: Re: Scalia the Sophist||Date: 12/13/2012 4:30 PM|
|Author: albaby1||Number: 1844766 of 2146246|
Stupid law* too, but at least the comparison isn't as facile as the one between gay marriage and murder.
Again, the point Scalia is making is not to compare them to draw any kind of similarities between the two. It's the opposite. Scalia's point is that the Lawrence theory is so broad that it affects the underpinnings of completely unrelated laws, like those relating to murder.
Seems to me there's an obvious difference between laws that restrict public behavior with regard to community norms (prohibitions against nudity, for example) that affect others and laws that restrict contracts between two consenting adults.
Of course there's a difference. But it doesn't matter, under the Lawrence analysis, which rejected the idea that community norms and morals could serve as a basis for regulation altogether. Plus, the Court has never held that the police power of the state only extends to things that 'affect others'. We might reach a consensus that that is a wise and beneficial place to stop regulating - but that is a policy decision, not an inherent limit on the legislative power. The state is perfectly free to impose regulations to keep you from harming yourself, even if it doesn't hurt anyone else, if it would like to.
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