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The "problem" is the "rules" of "good" keep changing. Some rules seem to be immutable - laws against homicide. But then there are degrees and defenses to be resolved in Courts of law - again backed by the coercive power of the State. Other supposed rules as time goes by turn out to be less "good" and are discarded or ignored or out and out changed - like laws against miscegenation, wives as chattel, etc.

Exactly. So the key question for the SCOTUS when it applies its "rational relationship" test is to figure out what underlies that distinction - to figure out the core question of, "what is the universe of letigimate government purpose?" How can we reconcile laws against women appearing topless in environments where men are permitted to be shirtless - which are based on notions of societal taboo and sexual mores - while still arguing that government lacks any interest in enforcing sexual mores for their own sake?

More important for Scalia is the question of whether you can distinguish an argument that government cannot legislate against something merely because society might find it violative of some moral norm from every other law in existence, which at the end of the day are also value judgments that one outcome is simply preferable to another.

When Scalia asks the question framed by an 18th century view of the world mindset, it's a form of "When did you stop beating your wife?" Very clever, but ultimately designed to avoid the current issues rather than recognize and deal with them.

I don't think so - I think it's actually the contrary. What he's asking in Lawrence is how a current and new legal standard - moral norms are not a legitimate basis for governmental regulation - can be integrated into the existing legal system, since an argument will be raised that many existing laws reflect nothing more than the elevation of one particular value judgment over another. To take some rather trivial examples from my own line of work, local governments can regulate what color you paint your building or what types of trees (from an aesthetic purpose) you can landscape with. There's nothing their but the expression of one societal aesthetic preference over another - we like color X but not color Y. How does that fit into an environment where societal value judgements are not a legitimate purpose for governmental action?

It's a tough question, and it's tough for judges to articulate where the lines are.

Albaby
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