July 22, 2005

Unbearably sad photo.

I saw this picture yesterday, and then again today when commenters said I should link to this blog. I haven't written anything about it. I can't begin to collect my thoughts. I will just say that is the saddest photograph I have ever seen. Unbearable. Unbelievable. The senseless execution of children.

89 comments:

Goesh said...

- and this nation is pursuing a nuclear program? Diplomacy and sanctions are going to work with this regime? Sharia law, it reminds me of the video from Afghanistan where the taliban enforcer was beating a woman with a truncheon because her veil was too low on her face, or for that matter, this photo reminds me of the recent execution via homicide bomber of Iraqi children receiving candy from US soliders. I keep hearing from some quarters that islam is a religion of peace.

ploopusgirl said...

The problem with the right is that you all over-generalize everything. If you attempted to educate yourself a little and took a theology class, you would see that the origins of Islam and the basic beliefs of Islam are rooted in peace. The religion itself is in fact very peaceful, despite what you would have everyone believe. Are the laws and practices of Islamic nations today representations of peace? Hardly. That doesn't change the fact that the religion itself, and most of its followers are peaceful people.

If you think anyone on the left would even begin to defend this type of behavior based solely on the fact that it follows "Sharia law" and therefore is exempt from being humane, then you're wrong. This entire situation is horrid, as it would be if it were the stoning of a woman, or the slaughter of any other human being.

Dirty Harry said...

Goesh -- Islam is a religion of peace. But if one-tenth of one percent of Muslims are terrorists -- that's a formidable army.

I do wish mainstream Muslims would get out and condemn this more and declare it the "evil" that it is.

abe said...

A sad, sad story. And an even sadder picture:
http://isna.ir/Main/PicView.aspx?Pic=Pic-556874-3

Sorry about the link. I'm new and not too bright.

chuck b. said...

Whether or not Islam is a religion of peace, let's (at least) not kid ourselves. Christianity has had its own dark episodes too--episodes just like this.

m.g. said...

Re the “origins of Islam and the basic beliefs of Islam [being] rooted in peace”:

"One of the basic tasks bequeathed to Muslims by the Prophet was jihad. This word, which literally means 'striving,' was usually cited in the Koranic phrase 'striving in the path of God' and was interpreted to mean armed struggle for the defense or advancement of Muslim power. In principle, the world was divided into two houses: the House of Islam, in which a Muslim government ruled and Muslim law prevailed, and the House of War, the rest of the world, still inhabited and, more important, ruled by infidels. Between the two, there was to be a perpetual state of war until the entire world either embraced Islam or submitted to the rule of the Muslim state."

From THE REVOLT OF ISLAM by Bernard Lewis in The New Yorker.

Dean said...

"I do wish mainstream Muslims would get out and condemn this more and declare it the 'evil' that it is."

Dirty Harry, I wish so, too, it would certainly help counteract anti-Muslim reaction in many places.

Not that it would decrease terrorism. When people think violence is God's work (be it Muslim, Christian, Jew or whatever), I think it's very hard to dissuade them; not that we shouldn't make the effort.

Even though I consider myself a conservative Christian that most gays would label homophobic, I wish Christians would spend at least an equal amount of time condemning violence against gays (or anyone else for that matter) as they do condemning the gay lifestyle.

gs said...

My initial reaction to the atrocity is matter-of-fact. This is what totalitarian governments do. I knew that. The image doesn't tell me anything new.

I don't want to indulge in sadness until that regime has been replaced by a decent one.

L. Ron Halfelven said...

The problem with the right is that you all over-generalize everything.

Some sentences are just too good to be true.

Sloanasaurus said...

http://treyjackson.typepad.com/junction/

This website links to the Iranian news source and says the boys were hung for theft and public disorder.

I wonder why the different reporting?

chuck b. said...

"I don't want to indulge in sadness until that regime has been replaced by a decent one."

Indeed. And it will take a great deal of humility and compassion, I think, to sign on to an agenda that seeks to liberate such people from their tyranny when the preference might me instead(speaking for myself here--my bad self) to selectively extinguish them one by one.

downtownlad said...

This really has nothing to do with totalitarian regimes. Anyone who says it does, does not know their history.

The penalty for homosexuality was death in South Carolina until the 1860's.

As recently as the 1950's, gay people were being "treated" with lobotomies.

And if people think this was rare, they might want to read up on the history of Alan Turing, the inventor of the modern computer, a man who helped defeat the Nazis in World War II, and find out how the British government treated him when they discoverd he was gay. He was driven to suicide.

This is not about Islamo-fascists. What this has everything to do with is hatred of gay people.

We just happen to be lucky enough that the West is a lot more tolerant of gay people than they were 200 years ago.

Because this used to happen here as well.

mcg said...

The problem with the right is that you all over-generalize everything.

I had a long post prepared but I decided that I just want you all to stare at that sentence until you laugh with me at its internal hypocrisy.

Dirty Harry said...
This comment has been removed by a blog administrator.
Brendan said...

"This is not about Islamo-fascists. What this has everything to do with is hatred of gay people.

We just happen to be lucky enough that the West is a lot more tolerant of gay people than they were 200 years ago.

Because this used to happen here as well."

Oh I see. So we should recuse ourselves from bashing overseas Islamic honor killings, forced rapes, and stonings for infidelity because 80 years ago we denied women the vote. Our "sins" were just as bad and pernicious, huh? Sorry, but I'm not buying your vile equivocations and spin. We ARE better. They ARE worse. Denial of gay marriage rights in the US does not rival the madness of stringing up two innocent youths in Iran. Never will. In the words of Jack Nicholson: "Sell crazy somewhere else. We're all stocked up here."

Annon mouse said...

i really didn't want to see that picture of two naked guys kissing in the ad next the article you linked to. Aside from my "virgin eyes" and my oversensitivity, which others will undoubtedly make fun of or criticize, I would like to know if these boys were execute for homosexual behavior (as your link states), or for theft (as the other commenters link states) not that either behavior is worthy of hanging, i think it is important to know which "media source" is reporting incorrect data, regardless of their alleged motivations for doing so. Anyone have anything more on this?

Ann Althouse said...

Annon mouse: Sorry about the ad. There's no genitalia in the picture though. It's just chests. Anyway, I'd prefer a nice mainstream media link for a photo like this, but I haven't seen one. I think it's good that gay websites are keeping track of things that might pass unnoticed, and I'm not suprised that they take ads like that.

Drethelin said...

What the bible and/or koran says is pretty damn irrelevant. seriously. Quoting either one and saying christianity/islam is a religion of peace is just plain stupid. Islam, as it exists at this time in the majority of countries where it rules is brutal and oppressive.

Dirty Harry said...

Dean -- "I wish Christians would spend at least an equal amount of time condemning violence against gays (or anyone else for that matter) as they do condemning the gay lifestyle."

It's also frustrating how some fellow Christians single out homosexual behavior as though heterosexuals enjoying the sex-out-of-wedlock lifestyle aren't equally sinful. Not to mention adultery and the like...

If you're going to condemn a sinful lifestyle, best to include them all or you look prejudiced and maybe for good reason.

As a whole, I think conservatives have come along way with this issue even compared to just 20 years ago when their response to the AIDS crisis was at best indifference. And I think for the most part it's sincere.

knoxgirl said...

Repulsive. *Even if* they were executed for theft or whatever instead of for being gay.

Either way, beatings, executions, and the like happens to women in these countries all the time. This particular incident just throws the brutality into even more stark relief.

Sloanasaurus said...

The problem with with Islam is that the original prophet was a warrior who conquered his neighbor. Islam then spread by the sword. In contrast, Christianity's prophet preached to "turn the other check" and died a martyr.

These two historical facts set up different theological rationalizations. Hmm...

Smilin' Jack said...

The problem did not originate with Islam:

Leviticus 20:13 (New International Version):

If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.


It's just that Christians and Jews don't take their religion seriously anymore, thank God.

On the other hand, Islam is not and never was a "religion of peace"...you don't become a world religion by handing out Bible tracts.

mcg said...
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mcg said...

sloanasaurus, the religion from which Jesus Christ was borne, and which he did not repudiate, eliminated entire nations/tribes at God's command as they entered Canaan. So drawing too much from a religion's founding history isn't going to help. Focusing on its present manifestation is quite sufficient here.

smilin' jack, I take my faith quite seriously, thanks. I can't speak for Jews, though, but we Christians are not bound to the penalties laid out in Mosaic law. I tend to agree with Dirty Harry about the inconsistency of application of God's word with regards to sexuality; though let me be clear, but that doesn't mean I throw the whole thing out, either.

Sloanasaurus said...

Despite the many exceptions, the roots of Christianity makes it more difficult for Christians theologically rationalize the use of violence than Islam. This is why you have things such as the Geneva Convention arising in the western world and not in the East.

Dirty Harry said...

S' Jack: Leviticus is Old Testament.

Christ said a few things about judging and love and even casting stones -- that we Christians take very seriously and try to live by.

And I'll never understand the mentality of those who use present day issues to reeeeeeeecchhhhhh as far back as possible to either attack America or Christianity as though it either makes us as guilty or without right to criticize. Or worse, fight.

Hell, if the Democrats and their allies in the media were as eager to defeat homophobic terrorists as they are Rick Santorum -- things would look a lot different right now.

Dean said...

Dirty Harry, I agree with you 100%

Smiling Jack, it's not so much that Christians and Jews don't take their religion seriously anymore, but rather for most Christians, the New Testament has given us a new priority. While the Leviticus commands were indeed for a theocracy (which most Christians don't want in spite of liberal claims), the New Testament sets out a different standard. If I may quote Scripture:

Matthew 5:38-39 "You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I tell you, Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also."

Although not specifically regarding the Leviticus passage quoted, it provides a principle for interpreting the Old Testament law, because today we do not live in a theocracy.

The Old Testament laws are still valid principles, but only for individuals to conform their lives to, not for us to conform others to.

I see mcg and Dirty Harry posted along similar lines.

The Old Testament remains valid as things that, if followed, will prolong your life--dietary, etc.

Dirty Harry said...

Dean -- "The Old Testament laws are still valid principles, but only for individuals to conform their lives to, not for us to conform others to."

Never heard it summed up better.

Smilin' Jack said...

Christianity became a world religion when it was adopted as the official religion of the Roman Empire by Constantine (because he thought it helped him win a battle!) The Roman Empire did not expand itself through peaceful persuasion. And after it fell, followers of the New Testament had no trouble at all rationalizing violence...for centuries the history of Christianity was drenched in blood. Only the Enlightenment, by marginalizing religion, made it more benign. Newton banished God to the fringes of the universe, and He no longer seemed worth fighting for.

Now we have other things to fight over....

downtownlad said...

I'll restate my point.

This has nothing to do with totalitarianism, but has everything to do with hatred of gay people. Would anyone really be surprised to see this happen in the new Democratically elected Iraq? I wouldn't.

Yes - it should be condemend. Yes - Iran is led by a disgusting regime. But people are foolish if they think this could not happen in a democracy as well. Because it HAS happened in a Democracy before.

And the right-wing blogs have been silent on this issue. Why? Probably the same reason they are silent about the stoning of gay people in Nigeria. Because most of them don't give a damn.

downtownlad said...

I'll ask another question.

Who thinks that Scalia or Thomas or Rehnquist would find the execution of two 16-year olds for sodomy to be unconstitutional?

And if they say yes, on what constitutional grounds would they overturn such a law.

While they might morally oppose such a law (ok, well Scalia wouldn't oppose it), I am convinced they would find it to be constitutional.

Reif said...

With things like this going on, I have little stomach for hearing about the atrocities committed in Christ's name or that Islam, at its founding, was a religion of peace.

Vicious atrocities are occurring today in 2005 in the Islamic world and should be dealt with as such.

All this talk about, "well Christians did this in 1400 AD and Islam's origins blah, blah, blah," it all makes me feel like I'm a Croat in a room full of Serbs and Macedonians arguing about how we have to kill each other because one of our great grandfathers killed the other guy's goat. Get over the past and deal with the here and now. In the here and now Christians are arguing about whether or not to let gays wed not whether they should stone them to death or just hang them like these pigs in Iran.

Also, I must add that with so called "moderates" like Ashraf Choudhary a member of New Zealand's parliament in the West (see this New Zealand Herald Article: http://www.nzherald.co.nz/index.cfm?c_id=1&ObjectID=10334250) encouraging these disgusting murders, it's no wonder at all that they can happen in places like Iran and Pakistan.

mcg said...

Who thinks that Scalia or Thomas or Rehnquist would find the execution of two 16-year olds for sodomy to be unconstitutional?

You can't be serious.

(ok, well Scalia wouldn't oppose it),

Now I know you're not.

jimboman said...

Kinda brings to mind Matthew Shepard.

Kinda brings to mind the public stoning of women in Wahabi Saudi Arabia.

Kinda brings to mind the first time I saw suburban teens in the late 60s, coming to Lake Park , just east of downtown Milwaukee to "bash queers".

Kinda brings to mind Senator "man on boy" Santorum.

Dirty Harry said...

Downtown Lad appears to be a bit Amero-phobic. He only sees the worst. Only criticizes. And goes to rhetorical extremes to make a moral equivalency case that actually compares America to Islamo-Fascists! Scalia and Islamo-Fascists!

I wonder what would happen if we applied his criteria for discussing America to discussing Gay America:

Some child molesters are gay.

Some serial killers are gay.

John Wayne Gacy was gay.

Don't tell me children will be safe in Gay America. Don't tell me young boys will be safe in Gay America. Look at what gay people have done.

See, DTL -- anyone can cherry pick the bad stuff to create a moral equivalency case. But the key is context. And just as you ignore context (and reality) in your cherry-picking of America -- the same could be done to Gay America.

Both are equally unfair. And anti-intellectual.

downtownlad said...

mcg - While it wasn't a realistic scenario (I don't expect them to be hanging gay people anytime soon in the United States), it was a serious "hypothetical" question.

Sodomy is a crime - Rehnquist (Yup), Scalia (Yup!), Thomas (Yup!)

Death penalty for minors - Rehnquist (Yup), Scalia (Yup!), Thomas (Yup!)

So would they think it's constitutional to get the death penalty for sodomy?

And if not, why not?

downtownlad said...

Dirty Harry - I have absolutely no clue what you're talking about. You make absolutely zero sense.

I never compared Iran to the United States. I just stated that it's silly to say that only a totalitarian regime would execute gay people. Because this country, which has always been a democracy, has executed gay people as well.

Yes - they're not executing them now. And that's a good thing. We've evolved quite a bit over the last 200 years. It would be nice if Iran evolved too.

But to say that the only reason Iran is executing gay minors is because they are an Islamo-dictatorship is a false and specious argument.

Dirty Harry said...

DTL -- I must've misunderstood this:

"The penalty for homosexuality was death in South Carolina until the 1860's.

As recently as the 1950's, gay people were being "treated" with lobotomies."

And this:

"Who thinks that Scalia or Thomas or Rehnquist would find the execution of two 16-year olds for sodomy to be unconstitutional?'

Must've missed the nuance.

And if you think this is anything but Islamo-Fascists you are fooling yourself. The Nazi's went after gays too. These are nothing but Nazi's with death wish. They'll kill ya' because you're white.

It's about NOT being like them. Gay's got nothing to do with it.

downtownlad said...

Dirty Harry -

If you're trying to get me to say something that I've never said, you're going to fail every time.

Again - I've never said that Iran and the United States are morally equivalent. Iran is a brutish, thuggish, Islamo-fascist regime with zero respect for human life. The United States is one of the most robust democracies in the world.

But a democracy does not always translate into tolerance for gay people.

The penalty for sodomy in the island of Saint Lucia is 25 years. In Jamaica (a democracy by the way) it's 10 years hard labor.

In Jordan - An Islamic, middle eastern, monarchy - the punishment for sodomy is.... Well, actually it's legal there.

Guess what? Jamaica is more free than Jordan. So you have to get into other reasons for the discrepencies between these laws, rather than the sophmoric argument of "Islam". Perhaps culture has something do with it? Perhaps fundamentalism has something to do with it?

The Scalia question is a valid one. I thought Scalia cared about original intent. Well guess what - the United States was executing gay people in 1789.

So explain to me why you think Scalia would find this law unconstitutional?

Or are you just going to resort to ad hominen attacks instead?

mcg said...
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mcg said...

First of all: I can't speak for Thomas, because he doesn't speak in public much, but Scalia has made public statements which suggest quite clearly that he doesn't beleive that sodomy is a crime.

So why did he dissent in Lawrence v. Texas then? Simple: because such laws do not violate the constitution as he sees it. And no, it's not because he's some sadistic SOB who doesn't want to let gays (or adventurous straights) have their fun. It's because he understands, and seeks to avoid, the tyranny of the judiciary. It's because the constitution is silent on these issues, which means the decisions revert to the states. The final authority on issues not specifically mentioned in the Constitution he would posit, rests in the hands of the legislative bodies, not the courts.

So the reason why Texas has a sodomy law on the books is because the legislators in Texas didn't give a damn to change it. It's their fault. Go blame them. The court is not here to randomly decide whtn the legislatures just aren't doing their job.

The courts have a limited specific role to fill to check against legislative and executive excess; and it ought to be that way precisely because 1) there are so few of them; 2) they are not elected; and 3) their appointments are for life. The Supreme Court may feel pretty comfortable to you now, but it has been on the wrong side of issues such as slavery and civil rights and others where there is near-unanimous consensus now. So when they are wrong, where do you turn? To the legislative process, of course, where you should have turned in the first place. Democracy is not perfect, but it is better than the alternative of judicial tyrrany. And even when they are right, their role is limited. I should point out that the abolition of slavery and the granting of women the right to vote were accomplished by constitutional amendment---as it should be.

The same reasoning applies to the dissenting rule on the death penalty for minors, but it's a bit more difficult there. There is indeed a constitutional prohibition against cruel and unusual punishment. The question is, of course, what exactly is that? The majority decision, frankly, used a rather twisted logic to arrive at the conclusion that what constituted C&U P fifteen years ago (when they decided a similar case in the opposite manner) is not what it is today. Scalia would contend, if I remember his reasoning correctly, that what constitutes C&UP must necessarily be determined by some combination of history, tradition, and consensus---and at this point, this all still supports the execution of minors under certain limited circumstances (capital murder).

So, AHA! I've proven your point!

No.

I am firmly convinced that he would rule the death penalty for sodomy unconstitutional, on the grounds that it is cruel and unusual punishment. And he would be able to do so entirely in a manner consistent with his position on minor executions. Name one state that executes anyone for any act besides murder. Clearly, the death penalty is reserved by both tradition and consensus to the most heinous criminals in our society, and no, sodomy doesn't rank, and it hasn't for quite some time.

So I'm sorry that logic doesn't allow you to condemn Rehnquist, Scalia, and Thomas as sadistic bigots who would love nothing more than to execute you for seeking sexual pleasure. Indeed if you really cared about the preservation of your rights you would respect their constitutional approach far more than you do, because you could depend on them to support your efforts to effect civil rights progress through legislation, where it is best accomplished.

mcg said...

Guess what? Jamaica is more free than Jordan.

So your definition of "free" is "whether or not I can perform sodomy?"

Wow, that's pretty limited. I feel for you that none of your other freedoms count for squat to you.

mcg said...

Scalia has made public statements which suggest quite clearly that he doesn't beleive that sodomy is a crime.

Excuse me, I should have said "...he doesn't believe sodomy ought to be a crime."

Dirty Harry said...

DTL -- I don't think one willing to reach back to 1860's South Carolina should be accusing others of ad hominem. And not only are you making a moral equivalency argument, there is no other definition for what you're doing.

There are 300 million people in this country. When's the last time a person was killed for being gay? When's the last time one was hanged by government sanction?

Your words: "Because this used to happen here as well."

Talk about ad hominem. It has zero to do with this discussion. And we are the country trying to stop this at great personal and financial sacrifice.

You want adoption rights. But John Wayne Gacy was gay. You want marriage rights? Look at all the gay child molesters. That's how you're debating. No context and bereft of reality.

Some guy kills himself in Britian 60 years ago and you think it's relevant to a discussion about Islamo Fascists brutally hanging two kids and al-Queda targeting gays?

Moral equivalency. With a dash of ad-hominem.

As far as the Scalia/Islamo-Fascist comparison -- it's indefensible. Original intent? So, he's for slavery? Absurd.

Context. Perspective. We are better than they are. We are good (not perfect) but good. The are evil. Scalia is good (not perfect) but good. They are evil.

South Carolina 1860? A 60 year old suicide? Sheesh...

Ann Althouse said...

Downtownlad: You write "Sodomy is a crime - Rehnquist (Yup), Scalia (Yup!), Thomas (Yup!)/Death penalty for minors - Rehnquist (Yup), Scalia (Yup!), Thomas (Yup!)."

But all that the've said is that the federal Constitution doesn't bar something. That doesn't mean they favor it.

downtownlad said...

When Dirty Harry takes a valium and calms down, perhaps I'll have a discussion with him.

Until then, if anyone else wants to answer my very hypothetical Supreme Court question, I'm interested in hearing them out.

Dirty Harry said...

Define ad hominum.

Hmm? Hmm? Someone who says something like this" "When Dirty Harry takes a valium and calms down, perhaps I'll have a discussion with him."

Ding. Ding. Ding. Ding.

downtownlad said...

Ann - I've already acknowledge that they wouldn't favor it. I did joke about Scalia though.

Thomas acknowledged as much in Lawrence v. Texas, that he would never personally vote for those laws.

I'm just asking hypothetically. Do you think these three would vote to strike down a law that gave the death penalty for sodomy?

And if so - I'm interested on what constitutional grounds they would do so. I think they'd have to do some major backtracking.

It's possible they would use the "cruel and unusual punishment clause", although you have to admit, it would go completely against their doctrine of original intent. They've stated previously that "cruel and unusual punishment" means "cruel and unusual punishment in 1789". The death penalty for sodomy was very legal back then.

Dirty Harry said...

Good thing I wasn't asked to spell it!

downtownlad said...

mcg - thank you for answering the question, although I do you think you misunderstood all of my other points.

I will point out that laws that banned homosexual sodomy only, came about in the 1970's. They never existed before then. And only four states had them. And they were rarely enforced in a couple of those.

But Scalia still found the law that banned homosexual sodomy only to be entirely constitutional.

So if he were to overturn this law based on "cruel and unusual punishment", I think he would be entirely inconsistent from his prior rulings.

What you're arguing is that Scalia would have to be an "activist" in this case.

But I thought "activist" is always wrong and we should let the people decide these things...

You can't have it both ways mcg.

downtownlad said...

I'll actually rephrase the question mcg.

Would Scalia and Thomas have found this law to be unconstitutional in 1789, when the death penalty for sodomy was quite the norm?

Would Scalia and Thomas have found this law to be unconstitutional today?

Because if you answer yes to the first and no to the second, then their original intent argument goes out the window.

Ann Althouse said...

Downtownlad: You ask "Do you think these three would vote to strike down a law that gave the death penalty for sodomy?"

I'd have to study it more closely to give a good answer, but I think Scalia resists applying a constitutional right to proportionality in punishment. That would seem to mean that as long as the death penalty is generally valid and the crime can be a crime, that would be the end of the relevant rights under the federal Constitution.

downtownlad said...

mcg - Can you please provide me with the quotes where Scalia argues that sodomy shouldn't be a crime. I really find that hard to believe and quite inconsistent with his other public statements.

Thomas has definitely argued that he doesn't favor sodomy laws. But Scalia? I'd be very surprised.

Nels said...

downtownlad, I would guess that Scalia would find such a law to be constitutional. Why would he not, and on what basis do you think it would be unconstitutional? The 8th Amendment, as I read it, simply means that sodomy couldn't be punished by chopping off a hand, drowning, etc. Hanging would be fine.

If the Constitution omits what you consider to be important protections, and leads to stupid results, is that your fault or Scalia's?

downtownlad said...

I don't think the Constitution omits anything.

I think the 9th amendment and the 14th amendment prevent the enforcement of such laws as "death penalty for sodomy".

I also think the First Amendment prevents the enforcement of such laws a "death penalty for blasphemy".

And blasphemy was legal in 1789 too. And just as unconstitutional then as it is now, even if the court hadn't ruled on it yet.

And that is why this country IS better than Iran. Because we have fundamental rights that mean this could never happen here again. Thank God for Lawrence v. Texas!

mcg said...

Because if you answer yes to the first and no to the second, then their original intent argument goes out the window.

The answers are indeed Yes and No. And no, my original intent argument does NOT go out the window. Far from it. You must not have been listening. I said that history, tradition, and consensus make up the determination of what is C&U punishment (and only because the constitution doesn't make it explicit). Thus the consensus as to when the death penalty is C&U has changed since 1789, and so it is entirely reasonable that it would be unconstitutional now.

mcg said...

Can you please provide me with the quotes where Scalia argues that sodomy shouldn't be a crime. I really find that hard to believe and quite inconsistent with his other public statements.

I will see if I can find them. I do know that he has argued that localities ought to have the right to pass such laws. But it was in that context where I thought I remembered him saying that was not his preference.

mcg said...

I don't think the Constitution omits anything. I think the 9th amendment and the 14th amendment prevent the enforcement of such laws as "death penalty for sodomy".

Then you would be arguing that the Constitution did omit something prior to the ratification than the 14th Amendment.

But surely you can't think it was complete after just the 14th. Don't you think the 15th and 16th were important? The 19th?

At what point did the Constitution become complete? When we as a country changed our minds and decided it could be freely amended by the Supreme Court whenever it suited them?

I also think the First Amendment prevents the enforcement of such laws a "death penalty for blasphemy".

You think wrong. It specifically enjoined Congress from making laws. It did not enjoin the states from doing so, until (arguably) the 14th Amendment.

And blasphemy was legal in 1789 too. And just as unconstitutional then as it is now, even if the court hadn't ruled on it yet.

No, it was entirely constitutional then. So was limiting the right to vote to members of a Christian church.

Because we have fundamental rights that mean this could never happen here again. Thank God for Lawrence v. Texas!

Oh, but it can, because the way you would have it, if the Supreme Court decides to take away one of those fundamental rights, then it's a done deal, and we can't do squat about it.

mcg said...

That would seem to mean that as long as the death penalty is generally valid and the crime can be a crime, that would be the end of the relevant rights under the federal Constitution.

Just saw this comment from Ann. I don't know if she was implying that this means Scalia would believe that the death penalty for sodomy would be acceptable today under the Constitution or not.

But frankly, even if that is the case, I defer to Scalia. It is oxymoronic to have an unelected group of twelve jurists supposedly steer us towards a more so-called free society. If we as a people cannot do it democratically, it is to our shame.

Matt said...

Scalia's general view of the Eighth Amendment is that a punishment cannot be constitutionally "cruel and unusual" as long as a democratically elected legislature has that penalty as an option. So, theoretically, a legislature could impose drawing and quartering as a punishment for petty theft, and there wouldn't be a problem.

In my view, this renders that clause of the Eighth Amendment wholly meaningless, which demonstrates the silliness of that construction.

Goesh said...

- there must have been some gay people in the Egyptian resort that just got blown up, eh? Surely out of 45 dead so far a few were gay, or maybe it was sharia law simply enforcing the no alcohol ban this time around, after all, allah forbids it. They will be busy lads given all the booze in the world, and women without veils and gay people - with so much to do, one can see why they are trying to employ suitcase nukes - more bang for the buck as they say. Islam, the religion of peace, sure has a nice ring to it.

Dirty Harry said...

The whole argument over whether Scalia would find the outrageous hypothetical of executing someone for sodomy Constitutional is the last straw man in DTL's "We're no better" moral equivalency tirade.

Some wish to judge America on South Carolina 1860. Others on us launching a war of liberation to free 50 million Arabs and asking nothing in return but they be our allies.

Some wish to judge America on the few savages who murdered Matthew Shepherd. Others on the 295 million Americans who were revolted, wanted justice, and had a system in place to get it. In that liberal stronghold of Wyoming no less.

Some wish to judge America on a wild hypothetical regarding a single Supreme Court Justice. Others on a nation far too compassionate to ever allow that hypothetical ever to be tested. This country simply would not stand for executions for sodomy.

Judge Gay America by cherry picking the worst of that society to make a point and you're a homophobe. Judge America by cherry picking the worst and you're a liberal.

"But a democracy does not always translate into tolerance for gay people."

Not in 1860 South Carolina. Boy, you got me there.

"Because this used to happen here as well."

A single suicide. I stand corrected.

mcg said...

Well Matt, presumably, someone has to decide what constitutes "cruel and unusual". Who would you propose do so?

Pat said...

UPI is reporting the story as the two teenagers being executed for raping a 13-year-old boy, so there is at least a yellow light. Might be an excuse by the mullahs, of course.

Sloanasaurus said...

If the Court can all of a sudden bypass the legislature and decide that Sodomy is no longer a crime, why couldn't the Court decide that states do not have the right to have state run health programs or cannot raise taxes above 2%, or maybe....the Court will rule that states cannot have locally controlled police forces (as in Venezuala). This is the slippery slope of Judicial Activism.

mcg said...

Exactly. More generally, everyone loves judicial activism, specifically the invention of new constitutional mandates out of thin air, when it works in their favor. But spend a few years on the wrong side of them and you would think twice.

Consider the repurcussions of the recent Kelo decision, even though that was a more incremental decision than many people realized. (I guess it's the old story of putting the frog in the water before you boil it.) Now you have states pasing constitutional amendments to insure struct control over the use of eminent domain.

Of course it was always their prerogative to enshrine such controls thusly, but maybe nobody (stupidly?) thought it would ever have to come to that; that the "public use" and "just compensation" clauses were sufficient.

miklos rosza said...

As I recall, an Iranian judge personally put the noose around the 15 or 16 year old girl they hung a month or so back because she had sex outside of marriage.

And let's not even get into the Taliban filling a stadium with 30,000 men to watch a woman being whipped for letting her burkha slip. (That scene'll get you into seeing the Marquis de Sade, once again, as defining human nature more insightly than Rousseau. As in: how much masturbation was going on there or later on as that scene was enjoyed?)

The professional gay activists have a great deal invested in their opposition to the president; thus any event which seems to justify the War on Terror (and by association, Iraq) presents them with a problem.

But now gay leaders in Britain have received death threats from Islamoists and this tends to focus the mind. The example of Theo Van Gogh's assassination for criticizing the Muslim cultture's abuse of women is an example one would be a fool to ignore.

Perhaps the argument can be made that the violence and horror now associated with Islam ought be seen as remnants of tribal mindsets but such a distinction seems specious if not wholly disingenuous at this point, given that most of the violent Muslims are known to have grown up and been educated in the West.

Look rather to sexual envy as your "root cause" and elaborate a workable thesis from there.

Ann Althouse said...

Pat: Well, if it is indeed rape, then we have Rehnquist on record here accepting the death penalty.

Dirty Harry said...

"The professional gay activists have a great deal invested in their opposition to the president; thus any event which seems to justify the War on Terror (and by association, Iraq) presents them with a problem.

But now gay leaders in Britain have received death threats from Islamoists and this tends to focus the mind."

--Very well said. And we see some of the reaction is to list America's petty sins in comparison to avoid admitting that we may actually be the good guys in this fight. That we may be right. "Because this used to happen here as well." No. It didn't.

"The example of Theo Van Gogh's assassination for criticizing the Muslim cultture's abuse of women is an example one would be a fool to ignore."

Hollywood's ignoring it. If Van Gogh had been killed by an demented Christian anti-abortion activist he'd be lionized in Tinseltown. The film about his life would already be in the works.

But because he was killed by an Islamo-Fascist Hollywood says nothing. Not a word. It's as though it never happened. Admitting how dangerous the enemy is might sound like admitting Bush is right. Can't have that. Change the butcher to a Christian -- everything's different.

What it will take for many on the left to wake up is going to have to be too horiffic to be worth it.

Why is it the only racist, homophobic, sexist, theocrats liberals don't want soundly defeated are terrorists?

downtownlad said...

I see that Dirty Harry is still in need of a valium.

Not sure who these "professional gay activisits" are that he's talking about.

Pretty much every gay person I know (and being gay, that's a lot of them) is in favor of the War on Terror. And I have yet to meet one gay person who is an apologist for the Islamists. The Taliban were, after all, dropping walls on top of gay people.

But Dirty Harry, who probably doesn't even know any gay people, is going to jump to conclusions and make tons of pronouncements about how we're all left-wing.

Dirty Harry - I happen to be a Republican and was just asking a hypothetical question. I'm even pro-life. I've also been in favor of the Iraq war since day 1.

That's kind of why I've been ignoring you. Because you've been jumping from one false conclusion about me to another. Not to mention false stereotypes about the entire gay community.

You do realize this entire story went mainstream VIA the gay press, don't you?

mcg said...

downtownlad, a pro-life Republican, eh? Your position on the Constitution and the Supreme Court is a bit at odds with that. But there is definitely hope for you yet :)

As you requested I tried to find some direct quotes support my position that Scalia does not favor sodomy laws. I'm not the best searcher in the world but all I found was this article from the Harvard Crimson whereby he supports orgies "to eliminate social tensions."

Other reading suggests that he was taken out of context there. His point was that a recent European decision striking down a law on group gay sex was an inappropriate use of judicial power. I think he was trying to illustrate the following point the article says, "But Scalia said his personal views on social issues have no bearing on his courtroom decisions." (emphasis mine). Hence by claiming (jokingly, apparently) to support orgies, he was saying that it would be OK with him if a local government decided through the democratic process to allow them.

So it would be interesting to me, downtownlad, if you would be able to find for me statements where he specifically calls for laws against sodomy. I have a feeling that what you will find instead is that he has argued that such laws are constitutional and that localities ought to be allowed to pass them (and other social morality laws). I think that is a key distinction. Even back in the backwards 18th century, different localities had different positions and laws on various social issues---and the Constitution was set up precisely to allow that kind of diversity.

I don't think that you have anything to fear from the Scalias of this world: he is not interested in foisting his personal views upon you. Those beliefs held by the majority of citizens that differ from yours: well, that's a different matter. But if the constitution was held up in the manner Scalia would prefer, you would always be able to move to a community whose values you shared more closely, and the constitution would prevent it from being homogenized away. (No pun intended, sincerely.)

Dirty Harry said...

DTL -- If you call my use of your own words "jumping to false conclusions" there's a detachment at work I'm not quite sure how to overcome.

And I made no pronouncements about the gay community. Not a single one. You know, at least I use your quotes when "jumping to false conclusions." You just make things up.

And you were not just "asking a question." You were making absurd moral equivelancy statements based on a 150 year old South Carolina law, a single suicide, and a wild hypothetical about Scalia that our incredibly decent and tolerant America would never allow tested.

"Because this used to happen here as well." -- No. It didn't. Not even close.

"But a democracy does not always translate into tolerance for gay people." -- Based on the weakest cherry picking of anecdotal evidence you still haven't made that case.

My point is this: You're bringing up 1860 South Carolina and a 60 year old suicide into a discussion about Islamo-Fascists executing and targeting gay people is like me bringing John Wayne Gacy into a discussion about gay marriage:

It betrays a prejudice and the lack of a cohesive intellectual argument. "Whoaaaa..." You're saying, "Not so fast. Who are we to criticize? Look at us. Let's get off the high horse."

How about, "Gee, at our worst time in history gay people were better off here than in Iran today."

Was anybody hanged in South Carolina with government sanction or am I too in need of a valium to get that question answered the second time I've asked it? Google says, no.

As far as your attack on my lack of gay credentials and friends... Hope you didn't pull anything jumping to that conclusion.

Dirty Harry said...

mcg -- DTL has you wrung round an axle. Instead of proving his point, he has you disproving a hypothetical.

I say we just give on the hypothetical. Just say, "Yes, Scalia would not only allow executions for sodomy, he would also bring back slavery and take the vote from women." Because as DTL's pointed out, Scalia believes in original intent.

Let's take it furhter and just call Scalia a homophobic psychopath. I still say: So what?

What does one man in a country of nearly 300 million have to do with Islamic Fascists targeting and executing homosexuals?

This tolerant democratic society would never allow the psychopath Scalia the opportunity to wield his homophobia. You don't judge a country by one man. Or one 150 year old law. Or one suicide. You judge it as a whole.

mcg said...
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mcg said...

Dirty Harry, I can take care of myself, thanks. Besides, I personally don't think it speaks ill of Scalia if, under any circumstance, he finds sodomy laws constitutional, or even the death penalty for sodomy for that matter.

If it speaks ill of anything, it is of the constitution itself, and possibly we who live under it and yet refuse to change it.

The idea that we should trust 12 unelected ivory tower types to decide our moral framework remains unacceptable.

Ann Althouse said...

I'm not attempting to moderate this whole long thread, but I just want to say that when Justice Scalia gave a talk at the UW, one of my colleagues pressed him on the question of whether, if the Constitution had never been amended to give women the vote, the Court would eventually have had to interpret the 14th Amendment's Equal Protection Clause to provide the vote, and Scalia adamantly stood his ground, even after numerous plaintive restatements of the question. The answer was: No. The notion that it would be just terrible counted for nothing in his style of interpretation, which had to be carried out remorselessly. At some point, Scalia got fed up with my colleague's perserveration and snapped, "Then go start a revolution!" Amusingly, he added: "You'll lose."

Dirty Harry said...

mcg -- I agree with you and meant no offense. I was trying to make a point about the goading of one into disproving a hypothetical.

Judges have frequently used the Constitution to release violent criminals and sexual predators based on police mistakes or whatnot. That's actually happened and has actually resulted in death and tragedy.

Scalia has yet to use the Constitution to string a gay man, and if he did he wouldn't be the first to find refuge in the law when a ruling resulted in an immoral tragedy.

Liberal judges, the ACLU, and their ilk are the most guilty of this. But maybe when their victims are gay they'll reap the scorn for practicing what Scalia is accused of doing in hypotheticals.

mcg said...

Ann, thanks for the anecdote. I'm not entirely surprised by it---neither his position or his final retort :) Of course I am but an amateur observer without the intimate knowledge of the subject you and your colleagues have.

Dirty Harry, no offense taken.

downtownlad said...

Dirty Harry - I really do think you should go back and re-read my threads. Because I have not once argued in favor or moral equivalency.

This was a thread about the executions of gay youth in Iran. Waht this has to do with the Iraq war is beyond me. It's not like Bush has done anything to crack down on Iran. I thought the thread has everything to do with the execution of gay people. Pardon me for sticking to the subject.

In Iraq, under Saddam Hussein, sodomy happened to be legal. I wouldn't be surprised if under the new Iraqi democracy, they start hanging gay people.

Does that mean I favor Saddam Hussein over the current regime? Absolutely not. I'll take democracy any day of the week. Even though, I'm quite aware, that gay Iraqis might very well be treated much more harshly under a democracy than they would under a Saddam dictatorship. And it will be very sad when that happens.

Which gets back to my original point - these gay youth were not necessarilly hung because they live under a totalitarian regime. The same thing can happen in a democracy. It really has everything to do with hatred of gay people. So there are other factors at play here other than just "totalitarianism".

It really is a simple argument. I don't think I've stated anything controversial.

Bottom line - it's sad when youths are executed simply for being gay. It's sad when people are sentenced to 10 years hard labor for being gay (as they are in Jamaica). It's sad when the police put you in prison for having sex with someone of the same sex in the privacy of your own home, as happened in Texas, until the Supreme Court declared it unconstitutional. It doesn't mean these are equivalent. They're not. But it does mean they are all wrong.

And I'm glad I live in a country where I can have sexual privacy within my own home, and that our Supreme Court recognizes that are limits on the extent that the government can regulate our private lives.

It would be nice if the Supreme Court extended those checks to private property as well, by overturning the Kelo decision.

But perhaps you should realize that it would actually take an "activist" court to overturn Kelo and state laws, and it would take an "activist" and broad view of the takings clause, for that to happen.

The Supreme Court never created the Kelo law. Elected officials in Connecticut did.

At least I know that I'm consistent in my judicial philosophy. The government created by our founders was supposed to have very limited powers. And I don't think they intended for the government to regulate our sex-lives. I don't think they intended for the government to confiscate one piece of private property and give it to another private owner.

Only a libertarian justice, such as Alex Kozinski, could advance such a case of limited government. It's your judicial philosophy that is inconsistent, not mine.

Ann Althouse said...

Downtown Lad: In Lawrence, the men were fined $200 and assessed court costs of $141. They weren't sentenced to prison (though they were held in custody overnight after the arrest). In Bowers v. Hardwick, the DA didn't even pursue the case.

downtownlad said...

Good point Ann. Sodomy laws were more often used to prevent gay people from getting jobs and to prevent gay people from seeing their children.

http://www.sodomylaws.org/effects.htm

That said, I wouldn't exactly want to spend the night in jail simply for having sex!

Ann Althouse said...

Downtownlad: It shows that the people of the state weren't into persecuting gays (at least not on a criminal level). One of the reasons the plaintiff lost in Bowers -- really THE reason -- is that Justice Powell didn't think it was a real case. He thought it was a trumped up test case and therefore didn't see the point of creating a right to protect people from what he saw as nothing. Later, he saw the effect of his vote and was sorry about it. That's in his biography. The striking thing is that there aren't cases challenging the sodomy laws because they weren't being enforced. There are also a lot of criminal laws against fornication. I'm not seeing a government-led persecution of gays (other than exclusion from the military). It's mostly private prejudice and at most a government failure to deny private individuals the right to discriminate.

downtownlad said...

Ann - I mostly agree. I don't think there is that much persecution of gay people in this country anymore. I said previously that we're a hell of a lot more tolerant of gay people in the United States than are people in other countries.

But there is some persecution going on. The ban on serving in the military, like you mention. The Limon case in Kansas is one example. That kid is sitting in jail for another 15 years. The rise of states that are banning gay adoption is another. The rise of amendments that ban not just gay marriage, but civil unions and ANY benefits for gay people is another. And no there's a movement afoot to prevent gay people from holding jobs such as teaching. Not to mention the effort to purge all books from libraries that depict gay people in a positive light. And now the move in the Bush administration, to remove protection from discrimination for gay people who work for the Federal government.

I think the items listed above, represent a certain amount of animosity towards gay people, no? Certainly a rise from what it was 20 years ago.

I have absolutely ZERO qualms with private discrimination. If they Boy Scouts wants to discriminate against gay people, that's their prerogative.

But when the state does it, I have a problem with it. And I think if you look at Lawrence V. Texas and Romer v. Evans, many of the items I listed above are probably unconstitutional as well.

downtownlad said...

Also - I think it's interesting to note the rise of anti-gay laws in the public sector vs. the rise or pro-gay regulations in the private sector.

I think those differences are worth highlighting and studying further.

mcg said...

The government created by our founders was supposed to have very limited powers.

Your seem to be conflating the federal and state/local governments here. The federal government created by our founders was indeed supposed to have very limited powers. The states, on the other hand, were given quite a wide latitude under the constitution to govern as they saw fit. Yes, that included the ability to pass many of the laws that you and I don't like, such as laws against sodomy, adultery, fornication, blasphemy... they could even establish state churches and require attendance!

In fact, before the 14th Amendment was passed, the Supreme Court ruled repeatedly that the Bill of Rights did not apply to the states.

This should not be surprising given the history of this country's development. At its founding, it consisted of 13 states of differing origins, social mores, and governing structures. The last thing they wanted was a strong federal rule; many of their residents (or their ancestors) had fled to the colonies specifically to escape the tyranny of such concentrated power.

Now you can rightly argue that much of what was done then was antiquated, and it is a good thing that it has changed. That is all well and good. But it would be quite misguided to attribute to our founders a modern, morally liberal (or libertarian) outlook, because it just wasn't there. The founders were uniting a set of disparate colonies which had established certain freedoms and rejected certain others, and they had no intention of forcing them to radically alter their practices.

I don't think they intended for the government to confiscate one piece of private property and give it to another private owner.

Now on that issue I am in 100% agreement.

mcg said...
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mcg said...
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mcg said...

Upon reflection I have to correct my very last comment.

While I am certain that the founding fathers intended to keep the federal government from practicing the kind of land seizure we are talking about, I cannot say they intended to have any say in what states did in that respect.

That is not to say that they wouldn't personally disagree with such actions---it's just that they chose to stay out of the states' business.

I really don't know what states' positions on land ownership were back then.

Dirty Harry said...

DTL - Mcg: Can't tell you how much I enjoyed this spirited discussion. Already looking forward to the next.