Searching for Dahlia Lithwick's Slate article about Lawrence v. Texas for my friend because I told him about Scalia's interesting comment about flag-pole sitting (I kid you not).
Scalia insists that a liberty interest (under the fundamental-rights theory) needs to be "deeply rooted in tradition," and the mere fact that some of those state anti-gay laws have since been repealed doesn't guarantee a fundamental right. He suggests that even if all states had "repealed their laws against flagpole-sitting," there would not necessarily be a fundamental right to flagpole-sit.
Scalia insists that a liberty interest (under the fundamental-rights theory) needs to be "deeply rooted in tradition," and the mere fact that some of those state anti-gay laws have since been repealed doesn't guarantee a fundamental right. He suggests that even if all states had "repealed their laws against flagpole-sitting," there would not necessarily be a fundamental right to flagpole-sit.