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| At the Lebensborn clinic in Wernigerode, where single women bore children for the Reich. Image from The Children of Nazi Germany. |
Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.Apparently he had two kinds of laws in mind: those involving abortion and "homosexual sodomy". Did activist judges of the Weimar Republic bring on the Holocaust through their insistence on imposing their Jazz Age views on the sanctified constitution of the Germans?
Well, the constitution was written and adopted in 1919, so it doesn't seem likely that the Bundesgerichtshof of the 20s and early 30s represented a completely different [jump]
culture. Nevertheless the legal code was basically the one inherited from the Second Reich, and in fact they did issue a ruling on abortion law in 1927, declaring that the rights of the pregnant woman to life and health outweighed those of the fetus.
I can't find any evidence that the court had anything to say about sodomy at all. In 1929 the leftist majority (Social Democrats, Communists, and German Democrats) of a parliamentary committee voted to repeal the 1871 anti-sodomy statue but the National Socialists had taken over before the Reichstag as a whole managed to act on the committee recommendation.
The Nazis broadened the sodomy statute in 1935, enabling them to convict ten times as many sodomites (8,000 a year) as before, and eventually sending them to concentration camps alongside socialists, Jews, and Roma people to participate in the Holocaust (of course they tolerated closeted homosexuals in the party hierarchy, as is well known; remind you of anybody you know, Senator Craig? I don't know why these conservative laws never apply to the private pleasures of the conservative ruling class, but that's how it always seems to work).
As for abortion, Hitler's government worked to ensure that some women would not have abortions (those of the preferred "Aryan" type mated with men of the same type) and the others (Jews, Roma, Slavs, etc., and the congenitally not quite right) would. But since it did not regard these latter types as fully human, one might say that it was anti-abortion for everyone that mattered. Then again, at the deepest level it was anti-choice, less concerned about abortion than about choice, opposing women's right to choose in all cases. In that respect, its views are uncomfortably close to those of our nastiest Supreme Court justice.
