Dear Earl, Mark, and others: I'm the one who suggested that Prof. Tepker post his op-ed piece on the list because I thought it raised interesting questions (from one who agreed with the result about Kennedy's (lack of) legal analysis and the dangers posed by this failure. So far, this aspect of Tepker's post has been ignored.
As for the part of his post receiving comment (and condemnation), I have three comments. 1) By way of background, some might consider me to be a "know-nothing" (although being Catholic would disqualify me from that particular group) and a "stone thrower." See "Kulturkampf in the Backwaters: Homosexuality and Immigration Law," 11 Widener J. Of Pub. Law 475 (2002) and "In Defense of Represntative Democracy: A Reply to Professor Chemerinsky," 54 Okla. L. Rev. 38 (2001). 2) I don't think that Prof. Tepker attacked me or other "reasonable" people who might disagree with him. Although there is ambiguity in his choice of language, I take him to be referring to people who resort to emotional, nonrational, and shrill politics (which occurs among elements of both the right and the left). Maybe he should have chosen his words more carefully, but some members of the list could have read his words more carefully and generously. 3) Finally, a more general observation (and not a defense of Tepker's choice of words). I have seen far worse (and more explicit) demonization of people specifically (and categories of people who hold certain views) issuing forth from the pens of some on this list than that found in Tepker's op-ed. I agree with Earl and Mark that such demonization does not contribute constructively to the conversation and breaks the rules of civility. Peace, Michael Scaperlanda -----Original Message----- From: Earl Maltz To: [EMAIL PROTECTED] Sent: 6/27/2003 12:55 PM Subject: Re: Shameless self-promotion: A column on Lawrence in a local newspa per To quote Popeye the Sailor (as I may have done before), enough is too much. While it may be appropriate to characterize one's opponents in this way in the popular press, to implicitly characterize members of this list with whom one has disagreements as "Know-Nothing elements" and "stone throwers who are always ready to throw stones at someone else's sin" breaks every rule of civility. As self-promotion, this post fails utterly. It is simply shameless. At 11:55 AM 6/27/2003 -0500, Harry Tepker > The discarded Bowers decision had been a rallying point for a > politics led by the "Know-Nothing" elements of our politics, driven by > stone throwers who are always ready to throw stones at someone else's > sin. Instead of making that part of our history clear, or clearer as did > Justice Sandra Day O'Connor in a concurring opinion, the majority reaches > for a less accusatory and divisive rationale. Justice Kennedy tells us > that "Bowers was not correct when it was decided, and it is not correct > today." It misconceives the issues at stake. It underestimates the > character and importance of privacy and human liberty. > >All the conclusions are there, but few of the explanations. Like other >historic decisions in favor of human liberty, Kennedy's opinion in >Lawrence will be written and rewritten by law professors in search of a >better basis for a just result. > > Justice Kennedy tells us: "As the Constitution endures, persons > in every generation can invoke its principles in their own search for > greater freedom." There is a lot of power and danger in that > sentence. It goes a long way toward conceding much that Senator Rick > Santorum argued in an unfortunate display of anti-gay prejudice a few > weeks ago. > > Is the essence of this new ruling a modern version of greater, > ever-expanding freedom? Or is it a belated recognition that all human > beings deserve the same core of privacy and freedom for sexual intimacy? > Have the justices aligned themselves in favor of one side in our nation's > culture wars, as Justice Antonin Scalia complained in dissent? Or is the > humane heart of the decision the recognition that our republic never was, > is not now, and can never be a totalitarian mechanism in which majorities > control the essence of individuality? Justice Kennedy's failure to offer > rigorous answers to these basic questions may make the case an enigma and > a tragedy wrapped in substantive justice and real compassion. > >_______________________ >Rick Tepker >Calvert Chair of Law and Liberty > & Professor of Law >University of Oklahoma >Norman, Oklahoma 73019 ><mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED] >405.325.4832 >NC: 405.826.0845
