The Supreme Court’s announcement last Friday that it will take up gay marriage is more than a chance for the justices to recognize the emerging national consensus in support of gay rights.
It is a chance for them to overrule the medieval views of Antonin Scalia.
As if in response to the court’s announcement, the acid-tongued justice visited Princeton University late Monday and reiterated his opinion, expressed in a 2003 dissent, that a law banning sodomy is on par with laws forbidding bestiality or murder.
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia said when a gay undergraduate pressed him on his views in support of anti-sodomy laws. He defended his noxious comparison: “I don’t think it’s necessary, but I think it’s effective.”
“I’m surprised you weren’t persuaded,” he told the gay student of his reductio ad absurdum comparison.
Scalia is right: His comparison is unnecessary. And he shouldn’t be surprised that Americans — including his colleagues on the court — are not persuaded.
The court’s decision to take up a pair of gay-marriage cases is almost certainly good news for gay rights and almost certainly bad news for Scalia’s defense of discrimination. Chief Justice John Roberts didn’t let his court stand in the way of immigration and Obamacare, and he surely doesn’t want to be responsible for a modern-day Plessy v. Ferguson that stands against the fast-emerging majority in support of gay rights.
A Washington Post-ABC News poll last month found that while a slim overall majority favors legalizing gay marriage, those younger than 30 support it by 66 percent to 33 percent. Nine states and the District have now legalized gay marriage.
While few think the justices will legalize gay marriage nationwide, court watchers expect they will strike down the 1996 Defense of Marriage Act, or DOMA, which trampled on states’ authority to regulate marriage. By leaving marriage up to the states, the march toward legalization will gradually continue.
This puts Nino in a tough spot. When he stood in the schoolhouse door a decade ago in his dissent in the sodomy case, he wrote: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.”
Now gay-rights supporters have done just that. If Scalia is to honor his own principle, he’ll vote to strike down DOMA and give his blessing to those states that wish to legalize gay marriage. But don’t count on it.
In writings and oral arguments of late, Scalia has sounded more like a conservative pundit than a jurist, railing against Obamacare and in support of immigration restrictions. He used his immigration dissent to criticize President Barack Obama over a policy that didn’t figure in the case.
His 2003 dissent in the sodomy case was typical of his extra-legal logic.
He accused his colleagues of signing on to “the so-called homosexual agenda” and taking “sides in the culture war” with a “massive disruption of the current social order.”
A practiced cultural warrior himself, Scalia wrote that laws “called into question” by the court striking down the sodomy ban were “laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
Scalia said the matter should be left “to the people” rather than to a “court that is impatient of democratic change.”
A decade later, Scalia’s parade of horribles still hasn’t mustered, and support for gay marriage has spread by the very means — democratic change — that Scalia praised. If he weren’t so opposed to international experience, he’d know that gay marriage hasn’t been a major factor in places that legalized it earliest. A study of Norway and Sweden found that, after an initial flurry of interest, gay marriages are well below 1 percent of all marriages.
Scalia finds himself with a growing list of foes: public opinion, empirical evidence, his own writings and an increasing number of conservative legal thinkers. Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the 2nd Circuit, a Republican appointee and a conservative, wrote in an opinion striking down DOMA that “the Constitution delegated no authority to the government of the United States on the subject of marriage.”
This would appeal to an “originalist” such as Scalia — if he weren’t more concerned with bestiality.
Dana Milbank is a columnist for The Washington Post. His email address is danamilbank@washpost.com.
In terms of the law, his analogy is not only stupid, it’s not an analogy. He knows mere moral disapproval alone is not enough for a law. Murder is outlawed (in most cases) because there is a victim. Where is the victim in a monogamous homosexual relationship? We don’t outlaw murder when there isn’t a victim. Isn’t that the basis of those “stand your ground” laws that conservatives love so much?
This is hypocrisy to the highest degree. Conservatives love the states rights argument, but somehow here, they want the federal government to trample over the states that want to decide what marriage means for them. That is obvious and blatant hypocrisy.
Want to see a woman of integrity? See Ginsberg. She’s done these Q&A sessions before and when asked political questions, she’s declined and she specifically stated that these issues would be before the court soon. She didn’t want to pre-judge the cases. Scalia? He has no problem admitting he’s already made up his mind. Made up his mind before hear arguments, reading the briefs and memos, etc. That is absolutely disgusting and you know the right would be screaming bloody murder if anything like this happened on the left. Have the integrity to admit that Scalia is absolutely and positively a bad justice.
Sad fact that, less than ten years ago, it was essentially illegal to be gay in (I think) fourteen states.
Scalia is winging right out in the open and taking full advantage over the fact that checks and balances stop before checking his extreme prejudice.
Scalia is a poor excuse for a jurist. And his grandstanding indicates we’d all be better off if he resigned and became a journalist (although he’d be just as incorrect).
Thank you Antonin Scalia for standing up for what’s natural and right!
What is natural and right about being unable to understand why murder is illegal??
I think you misunderstood my point. Scalia referred to the idea that he believes that homosexual behavior is morally wrong, just as he believes that murder is morally wrong. The basis for his belief is probably the Bible, which has served as the foundation of belief for many people for the past 2,000 years. Although many in the pro-homosexuality movement do not believe the Bible to be relevant today, many of us still do. I suspect that this rift will only grow in the future, as many Americans continue to turn away from classical Christian belief toward secular, humanistic thinking.
Just because “many” people get their moral beliefs from a particular book does not mean a country should base its laws on it.
What then should be the basis for the establishment of our laws? Should we allow everyone to do whatever seems right in their minds?
There is no logic to using the bible when making law. Scalia’s personal beliefs should not be allowed to taint arguments.
A jurist’s personal beliefs have to serve him as he decides how to establish law. How do you think our founding fathers established the foundational law that our legal system is based upon?
It’s human nature to lean based on personal beliefs. I understand that. But Bibles are a series of parables written by many people, following different beliefs. They can be personal guides to personal behavior, but should not be germane to the consideration of law for a greater body – many of whom might not be Christian. Remember the people who conquered this continent were initially running from religious persecution. (Of course, as most Christian religions seem to do, they persecuted the native religion, and anything different that cropped up amongst themselves.)
So it makes sense that our most oft cited founding father Thomas Jefferson, first noted needing ‘a wall’ between religion and state. While the first Amendment doesn’t say separation of church and state, much law and commentary afterwards does bring up the separation of church and state.
For me, as a person who puts a lot of faith in science, while still practicing my own PERSONAL religious beliefs, nothing that I would ever try to push on anyone else, the separation of church and state is imperative. Scaalia should be censored at the least, or step down.
I appreciate your well thought out response, and I agree with some of what you say. The problem with science as a foundation of faith is that it isn’t equipped to deal with most questions of “morality” that we face. Evolution suggests that the most strong survive–or at least the most persistent. With this idea serving as the basis for the formulation of one’s morality, murder could be considered appropriate in a time when resources are scarce. Perhaps this is why many non-Christian people are ok with abortion–given that unplanned, “unwanted” babies are seen as an economic and social burden on society. Most Christians, however, hold the view that God initiates new life in spite of what we consider to be the most convenient circumstances, so to snuff out that “innocent” life before it has even “fully” come to fruition is morally wrong. Without this moral guide to provide a framework for the development of one’s beliefs, how can anyone decide what is right or wrong for a society? I know we’ve come to love polls in this country, which capture national sentiment at one moment in time, but if we use polls or current public opinion to establish our laws, I believe we are likely to destroy both our economic and social stability in this country, much like Europe has been doing recently.
PureLogic, I appreciate a thoughtful reply back. I am an earthworshipper, and recognize that a few of my moral guides mirror the evolution of many religions. I won’t take the abortion tangent, but I will say that there are many different belief systems in this world, and in America. Intellectually we encourage that diversity, but in practice we definitely have a harder time with it. To say that different belief systems are immoral, that science doesn’t leave room for making better, more informed decisions proves the limits of the Christian belief. What has happened in Europe and the United States occurred across all beliefs. A greediness and removal from personal responsibility that all the morality in the world doesn’t seem to be able to overcome.
How did we lose that? I see it in every religion.
If you only think murder should be illegal because the Bible says its wrong, you are a sociopath, too.
There is nothing in the Bible that is written into US law that is not a common moral, ethical law in every human civilization. But we absolutely take a better moral standard toward one another than the Bible instructs!
Take slavery– the Bible does not condemn the practice of slavery, though there are many passages regarding it. We live in an age today where human slavery is prohibited worldwide– a positive thing, don’t you agree?
This is but one example of how the world is becoming a better place as the secular, humanistic thinking you fear spreads and overcomes supersticious, fear-based beliefs.
Sodomy on par with murder?
Good grief Scalia… no wonder you’re name is attributed to dissent far more than anything else. You’re bloody crazy.
How did this person get on the Supreme Court, if he honestly cannot understand that crimes are crimes not because of some thousand-years-old book, but because they have real victims?
Seriously, he thinks the argument can be made to make murder legal because gay people aren’t getting locked up anymore? Gay people aren’t depriving anyone of life or freedom when they have consensual relationships.
I think the case can be made that Justice Antonin Scalia is a sociopath.