If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?
– Justice Antonin Scalia, in an appearance yesterday at Princeton to promote Reading Law (affiliate link), responding to a gay student who asked the justice why he draws parallels between laws against sodomy and laws against bestiality and murder.
(So, is homosexuality the new killing it? Read more, after the jump.)
Why does Justice Scalia make the controversial comparison between anti-sodomy laws, on the one hand, and laws against bestiality or murder, on the other? From the AP:
“I don’t think it’s necessary, but I think it’s effective,” Scalia said, adding that legislative bodies can ban what they believe to be immoral….
Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.
Then he deadpanned [to the questioner]: “I’m surprised you aren’t persuaded.”
Well, at least give the justice credit for having a sense of humor.
Justice Scalia’s larger point is that pretty much all laws have some moral component, so railing against “legislating morality” doesn’t take you that far. At the same time, the slippery slope argumentation might not take you that far either. If we’re going to “legislate morality,” which moral principles should we enshrine in law, and why? That’s where the action’s at.
When it comes to constitutional law, Justice Scalia generally prefers to enshrine as little as possible, out of respect for the political process. More from his remarks:
He said that people who see the Constitution as changing often argue they are taking the more flexible approach. But their true goal is to set policy permanently, he said.
“My Constitution is a very flexible one,” he said. “There’s nothing in there about abortion. It’s up to the citizens. … The same with the death penalty.”
Interestingly enough, some supporters of same-sex marriage worry that recent victories at the ballot box for gay marriage could undermine the argument for marriage equality before the Supreme Court. For example, in this Slate piece, Professor John Culhane wonders if it might be harder for gays and lesbians to claim “heightened scrutiny” if they possess significant political power.
So it’s wise for supporters of marriage quality to try and advance their cause of multiple fronts — not just before SCOTUS, but in individual states and in the court of public opinion. So argues Evan Wolfson of Freedom to Marry, in this New York Times op-ed.
How the U.S. Supreme Court will rule in the Big Gay Cases, concerning the constitutionality of Proposition 8 and the Defense of Marriage Act (DOMA), is anyone’s guess. But Justice Scalia’s vote isn’t really in doubt. Don’t be surprised if he’s not persuaded.
Have Gay Marriage Advocates Been Too Successful? [Slate]
For Marriage Equality, the Work’s Not Just in Court [New York Times]
Scalia: It’s “effective” to draw parallels between murder and sodomy [Associated Press via Salon]