On the heels of the Supreme Court’s decision to hear its first-ever same-sex marriage cases, Justice Antonin Scalia is not only defending his legal writings and “moral feelings” against homosexuality—he’s digging himself into an even deeper hole.
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Scalia said Monday at Princeton University, in response to a gay student’s question about why Scalia equates laws banning sodomy with those barring bestiality and murder.
The student, freshman Duncan Hosie of San Francisco, was referring to Scalia’s dissent in Lawrence v. Texas (2003), in which the Court struck down Texas’ sodomy law and made same-sex activity legal across the country.
In his dissent, Scalia wrote that if the Court was no longer prepared to uphold laws based on moral choices as it had in previous cases, then “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” could be called into question.
Murder gets no mention in Scalia’s laundry list of immoral activities. So why draw the comparison now?
Scalia qualified his statement yesterday, saying he was not equating sodomy with murder but drawing a parallel between the bans on both, as legislative bodies can ban what they believe to be immoral.
Then he added: “I’m surprised you aren’t persuaded.” It’s not the first time Scalia has voiced his opinion on homosexuality. His method of interpreting the Constitution—he calls himself a “textualist,” because he interprets the words in the Constitution as they were meant at the time they were written—makes certain Court decisions “easy,” he said in October. “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,” Scalia said at the American Enterprise Institute. Though the Supreme Court’s outlawing of anti-sodomy laws in 2003 seemed to be a step toward increasing gay rights, the Court did not declare homosexual sodomy a “fundamental right” in that case—a point Scalia makes in his Lawrence v. Texas dissent, and one he could argue again in the upcoming Defense of Marriage Act and Proposition 8 appeals.
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