U.S. Supreme Court Justice Antonin Scalia was at it again yesterday. I have previously criticized Scalia’s apparent insatiable appetite for public notoriety, including violating judicial ethical rules by discussing issues in pending cases. He is the very model of the new celebrity justice that I have criticized in past columns (here and here and here). Now, at Princeton while pitching his latest book, “Reading Law,” Scalia succeeded in not only discussing an issue in two pending same-sex marriage cases but reaffirming homophobic prejudices. Scalia was questioned about his controversial comments equating homosexuality with bestiality by a gay student. Scalia admitted that such comparison are “not necessary, but I think it’s effective.” That appears to be the standard used by this justice in using profoundly insulting language: whether it is effective prose or argument. I will be appearing on Lawrence O’Donnell tonight on MSNBC with the student, freshman Duncan Hosie.
Duncan Hosie asked a disarming question of whether it is really necessary to compare homosexuality to murder and bestiality to make his point. No, Scalia, responded, “I don’t think it’s necessary, but I think it’s effective.” He then reaffirmed his support for “morals legislation” and the right of states to criminalize whatever they deem immoral — the very issue that underlies two same-sex marriage cases accepted last week.
Scalia basically told Hosie that comparing millions of Americans to people engaged in murder or bestiality is justified because it is clever: “It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd . . . If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” He then added the mocking afterthought that “I’m surprised you aren’t persuaded.” He certainly has, again, reduced this important human rights issue to an absurd level but I am unsure why that is effective as opposed to being obviously cathartic for Scalia.
I am not sure about Hosie, but I am not only unpersuaded but disgusted by the comments. For full disclosure, I represent the Brown family in the Sister Wives case in Utah challenging this type of morality legislation. As I have written in a prior New York Times column, Scalia is attempting to divide citizens with such arguments and he has been remarkably successful when it comes to gay and polygamy cases. In his dissent in Lawrence v. Texas, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.” It is a Scalia parade of horribles. However, it also equates homosexuality with crimes like bestiality which occur without the consent of the victims.
Of course, Scalia does not answer how the right to criminalize immoral acts has been previously used to prosecute marriage of mixed race couples. He repeatedly refers to the slippery slope once the Court strikes down morality legislation, but never discusses his own slippery slope of criminalization for any acts deemed immoral by a majority of citizens.
Scalia’s view of the law seemed perfectly captured in responding to whether the Constitution is a living document. He responded “[i]t isn’t a living document. It’s dead, dead, dead, dead.”
Source: ABC
http://www.usnews.com/news/national/articles/2007/10/02/10-things-you-didnt-know-about-justice-antonin-scalia
(Nine children!)
“Editors’ Note: Justice Antonin Scalia got more than he bargained for when he accepted the NYU Annual Survey of American Law’s invitation to engage students in a Q&A session. Randomly selected to attend the limited-seating and closed-to-the-press event, NYU law school student Eric Berndt asked Scalia to explain his dissent in Lawrence v. Texas, the 2003 Supreme Court case that overturned Bowers v. Hardwick and struck down the nation’s sodomy laws. Not satisfied with Scalia’s answer, Berndt asked the Justice, “Do you sodomize your wife?” Scalia demurred and law school administrators promptly turned off Berndt’s microphone. As Berndt explains in his post to fellow law school students, it was an entirely fair question to pose to a Justice whose opinion–had it been in the majority–would have allowed the state to ask that same question to thousands of gays and lesbians, and to punish them if the answer is yes.
We reprint Berndt’s open letter below.”:
http://www.thenation.com/article/debriefing-scalia
If you saw Scalia’s wife you would accuse him of porkin a beast.
Scalia is the beast here. Primitive, and he and his ilk should be extinct.
“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd . . . If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Using Scalia’s pristine argumentative logic then we can deem this Supreme Court Justice joins the ranks of some of the most horrific war criminals in history. If Scalia had not ruled for George W. Bush in 2000, going against legal principles that he had long espoused, hundred of thousands of innocent people in Iraq would’t have been killed. Logic is not Scalia’s forte, though he pretends it to be his strong-point.
Gene, well said.
I do believe I previously stated that I expect Scalia to be on the wrong side of any given argument.
As for this nonsense: “The point he is making actually concerns any historically immoral sexual relationship that society would seek to sanctify.”
Our government is secular in nature. It was designed this way on purpose (the writings of Madison and Jefferson confirm this) and the jurisprudence that surrounds the Establishment and Free Exercise Clauses confirm this legal fact. Ergo, the government isn’t in the business of sanctifying anything.
sanctify /ˈsaŋ(k)tɪfʌɪ/, v.,
set apart as or declare holy; consecrate: a small shrine was built to sanctify the site
make legitimate or binding by a religious ceremony: their love is sanctified by the sacrament of marriage
free from sin; purify: may God sanctify his soul
cause to be or seem morally right or acceptable:
Scalia’s argument is wrong from the start because for someone claiming to be an originalist, he’s doing ethical backflips (mostly in the form of multiple false equivalences and reductio ad absurdum) to make the Constitution say what he wants it to say rather than what it says. Marriage licensing is not a “holy act”. It sanctifies nothing. That’s for a church to do. What marriage licensing does is define a relationship for other legal purposes such as contracting, ability to speak for an incapacitated partner, and for testamentary purposes – all valid secular matters dependent upon recognizing a relationship, not morally approving of it. There are plenty of heterosexual marriages one could object to on “moral grounds” and if the government was in the business of telling you who you could marry? That’s not only unconstitutional, but I think a good cause for rebellion if you want to be blunt about it. Who you marry is nobody’s business but you and your partner as long as you are both of age and otherwise able to give valid consent.
Scalia is a hypocrite and a theocratic fascist. He’s an originalist when it suits his desires, but the argument he makes isn’t originalist. The originalist argument is for recognizing the relationships as government isn’t in the moralizing business. He doesn’t care what the Constitution says unless he can make it say what he wants it to say. In this case, he wants to force his religious dictates upon others. Plain and simple.
His logic is flawed. His “facts” are based on “because he says so”. Arguments rely upon logic and evidence. He has neither on his side in this instance, ergo, his argument is crap.
The man and his argument are a disgrace to the bench, SCOTUS and the very notions of liberty and freedom the Constitution is designed to protect.
Scalia may be the worst jurist to ever sit on the Supreme Court.
And that’s saying something compared to Rehnquist.
Moral feelings
So there is an equivocation in Scalia’s claim over “cannot.” You can have all the feelings you want against anything. Some of those might be morally justified, some might be legally enforceable. No law, however, can take away your ability to disapprove of things.
As if this were not bad enough for a big mind such as Scalia’s, this equivocation is then used as a lever to push the little cart down the slippery slope: if we cannot ban homosexuality, then we cannot ban murder! That’s not reduction to the absurd, it’s just absurd.
EastBroadwayLong Beach,
Take a hike.
Scalia’s point is lost on Turley. The point he is making actually concerns any historically immoral sexual relationship that society would seek to sanctify. Is Turley weeping for all the oppressed people who happen to be attracted sexually to an adult family member? Such people are not only forbidden to marry, but are punished criminally under the law in many states for simply being who they are and loving the person of their choice. Turley may not agree with Scalia but the argument is legitimate.
Catholickass ‘Cork-sucker’…. if he wasn’t sitting on the ‘Little less than Supreme Court’ he’d be kneeling under the Pope, sucking on his balls…..
I didn’t think this story would remain until the weekend. 🙁
mahtso – since when has the USSC limited itself to criminal action? (although some USSC opinions are criminal thats a different matter 😉 )
I guess I was not paying attention, but I did not understand that the DOMA or the California Prop 8 cases were criminal matters.
I don’t think that being a bigot is, in and of itself, a high crime or misdemeanor, but applying that bigotry instead of the law in deciding cases is.
Is being a bigot considered a high crime or a misdemeanor?
If mixed race marriages were once deemed immoral, what does he think of Clarence Thomas and his wife?
Scalia is one of the most disgusting American Jurists in our history. For him to go on the record on this issue is a violation of judicial ethics and he should be impeached for just this latest abuse. This issue was just accepted for review by the Court and he has already decided the case without any briefs or arguments have been presented.
The so-called originalist refuses to point to the section of the Constitution that allows gay people to be discriminated against! Whose morals will be affirmed by the Court? Are the morality police next?
Good luck tonight Professor!
Geez, Fat Tony is unduly biased….just because having gay sex with HIM would remind some folks of bestiality…..I know, I know, spiteful and snarky of me, but he brings that out in me.
Scalia’s view of the law seemed perfectly captured in responding to whether the Constitution is a living document. He responded “[i]t isn’t a living document. It’s dead, dead, dead, dead.”
Only if he gets his way it would seem.