Civil unions are officially underway in the Garden State, my much maligned but I would go to war to save her home state. The more I think about the nature of rights, the more I think that Justice Scalia is off his rocker. Controversies like same-sex marriage are exactly the sort of thing that courts should be deciding. Justice Scalia recently debated a Justice of the Supreme Court of Canada on the matter of original intent, living constitutions, and the role of the judiciary. Consider this assertion by Justice Scalia:
This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.
Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. “What democracy means is that the majority rules,” he said. “If you don't believe that, you don't believe in democracy.”
But Mr. Justice, equal protection of the law is the majoritarian principle, duly ratified by three-fourths of the States. Doesn't it behoove the alleged democratic majority to ratify and clarify the (in this case) non-meaning of equal protection? I admit that this argument is simplistic at best, and a borderline red-herring at worst, but equal protection of the law remains the democratcially adopted law of the land.
NOTE: I started to write one thing, then crossed it out and went a different way. Hence the reason that the title doesn't quite match the rest of the post.