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
Bob, Esq.:
Ditto. “Moral feelings” are the stock in trade of lynch mobs, vigilantes and the occasional Supreme Court justice.
Scalia: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
And now, with a tragic shooting fresh within our minds we’ll see “moral feelings” and its attendant appeals to emotion dictating the dialogue on gun control.
Feelings have nothing to do with it.
Kant: ” For the pure conception of duty, unmixed with any foreign addition of empirical attractions, and, in a word, the conception of the moral law, exercises on the human heart, by way of reason alone (which first becomes aware with this that it can of itself be practical), an influence so much more powerful than all other springs* which may be derived from the field of experience, that, in the consciousness of its worth, it despises the latter, and can by degrees become their master; whereas a mixed ethics, compounded partly of motives drawn from feelings and inclinations, and partly also of conceptions of reason, must make the mind waver between motives which cannot be brought under any principle, which lead to good only by mere accident and very often also to evil.”
Scalia: “If we cannot have moral feelings against homosexuality, can we have it against murder?”
It is so ironic that Scalia here implies that morality, and with it law, should be based on feelings. This is exactly what so many critics of secular morality allege of their opponents; that they base morality on nothing more than feelings, which are relative or subjective rather than objective.. Yet here is Scalia suggesting that community feeling is a proper basis for morality and law. So why are the anti-secularists such fans? Could it be because it is their feelings he supports?
Yeah.
Try enforcing it.
FIRST, hire a lawyer…
THAT WHICH MAKES AMERICA EXCEPTIONAL —
AMENDMENT XIII.
SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
SECTION 2. Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XIV.
SECTION. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SECTION. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twentyone years of age in such State.
SECTION. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
SECTION. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
AMENDMENT XV.
SECTION. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
SECTION. 2. The Congress shall have power to enforce this article by appropriate legislation.
http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-7.pdf
Gene:
Thank you for the endorsement – now the others might read the articles.
The following is a link to Nathan Newman’s article “Lincoln and the Founding of America’s Second Republic,” wherein he declares that the United States has two constitutions: the old, colonial constitution and the new, post-Civil War Constitution; that the 13th, 14th, and 15th amendments are game changers vastly expanding the power of two branches of the federal government and the direction of America’s democracy while limiting that of the judicial branch to interfere with such power:
“That ‘states rights’ was the key issue in this Constitutional change is understood, if disputed by some, but the latter point of giving Congress, not the Supreme Court, the responsibility for enforcing equality is less recognized. With the current Supreme Court reviewing whether Congress exceeded its powers under the 15th Amendment in renewing the ‘preclearance provisions’ of the 1965 Civil Rights Act, the film is a strong reminder that constitutional drafters like Thaddeus Stevens (played by Tommy Lee Jones in the movie) were determined to challenge the power of the Supreme Court, which had essentially launched the Civil War by overturning Congressional legislation in the Dred Scott decision.
“All three post-Civil War amendments provided — crucially, in the minds of Stevens — that ‘Congress shall have power to enforce this article by appropriate legislation.’ Note that these were the first Amendments to the Constitution that specified not limits on Congressional power but instead its expansion — with not a word about a judicial role in limiting that power. That’s not accidental, for the Supreme Court was seen as the enemy of freedom in the nation at that point, having not only struck down Congressional limits on slavery in Dred Scott but also having expanded the power of slave-owners to recapture runaway slaves in cases like Prigg v. Pennsylvania.”
Sorry, but all I have is a Huffpo cite:
http://www.huffingtonpost.com/nathan-newman/lincoln-and-the-founding_b_2277918.html
The following is law review article which I believe demonstrates the manner by which the Supreme Court is making value based decisions that are contrary to the spirit of the Republic’s “new” constitution to the detriment of the common man and the benefit of The Entitled (aka 1%).
http://illinoislawreview.org/wp-content/uploads/2012/09/Kairys.pdf
“Homophobia” is exactly what motives hatred for gays. It is, strangely, one of the most accurate terms ever coined or used in our cultural discussion of prejudices. I had never understood what straight men had to fear from gay men until I began to ask. (I did not ask, “why are you afraid of gays?” I asked, “What is it about gays that bothers you the most?” Then, if they admitted that they were bothered by gay men, I drew them out, eventually asking, “Does it make you feel uncomfortable to be near gay men?”)
Strangely, straight men did try to answer me: Here are the answers I got, basically in order of frequency/prevalence:
——————————————————-
1. I’m afraid they will come on to me.
2. I’m afraid they will think I AM GAY!
3. I’m afraid of AIDS. (huh?) Most of them have it.
4. I’m afraid that’s all they ever want to talk about, so I don’t want to have anything to do with them.
5. I’m afraid that if they will do THAT, they will do ANYTHING.
———————————————————
I did not argue with any of the men who answered this way to me. I was just trying to learn what was the root of their homophobia.
Answer #2 was first told to me by a 16-year-old African kid who had been in this country for 9 years when we spoke about this. He knows me well and knows that I am liberal, left-leaning, and not knowingly homophobic. When I asked him questions about his feelings, I expressed them differently, as:
1. Is it true you don’t like gays? [Yes]
2. If you had a friend you thought was straight and then you found out he was gay would you drop him? [I don’t know]
3. What do you think would happen if you DID have a friend who was gay? [HE MIGHT THINK I WAS GAY!!!] (very alarmed and frightened look on his face)
Funny that people who do not support civil rights for teh gays just cannot stop thinking about what could possibly be going on in their bedrooms.
No matter how hard they try, like Scalia, they cannot keep those visions away.
Hubert, I am with Mike Spindell. Do I detect a note of cognitive dissonance there? A little feeling that is making you uncomfortable?
When MSNBC, or other news outlets schedule Professor Turley to be on a show, I wish they would not pair him up with other guests at the same time. I think this limits the dialogue. As is the case last night on The Last Word.
orolee,
Thanks for suggesting the wonderful law review articles. I would say they are a must read for someone not only looking to get a handle on Scalia, but on SCOTUS in general.
“Scalia succeeded in not only discussing an issue in two pending same-sex marriage cases but reaffirming homophobic prejudices”
The word “homophobic” or “homophobia” is an obsolete, useless, meaningless word used only to stereotype and ostracize people with differing views on homosexuality. The word implies a phobia, or fear, but of the general consensus regarding homosexuality, the primary emotion is not of fear, but of disgust. The quicker these special interest groups stop using words like “homophobia” the better, since it’s an obscure obsolete word. Most people have an emotion of disgust regarding homosexuality, not some fear. Honestly, what would that fear be? Some have better interior decorating skills?
“Most people have an emotion of disgust regarding homosexuality, not some fear. Honestly, what would that fear be?”
Hubert,
You know that fear, it’s deep in your gut, as dark desires run through your mind uncontrollably……..you need to keep praying about it, or face eternal damnation. Have a nice day. 🙂
The emotion of disgust I have is with you. If I recall you are a Bible thumpin’ kind of gu. y Remember these words “Judge not lest ye be judged, love one another as I have loved you” More important, you never know who is or is not homosexual; that person you feel ‘disgust’ for may well be your nephew, cousin, son, best friend, boss.
Is there something in his past that no number of confessions can cleanse? Is Nino on a guilt trip?
OK, here’s a real problem with the thinking process:
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Certainly, Justice Scalia, you “CAN” have moral feelings [which you refer to one phrase later as ‘it’ in the singular] against homosexuality. You CAN have moral feelings against red lipstick, too. But keep them the EFF to yourself. They are not laws and laws against them (for OTHERS to have to obey) simply because you have “moral feelings” against them are unconstitutional.
If I were to be able to institute laws in accordance with my “moral feelings,” we would start at ground zero for RIGHTS accruing to any human being or animal. Infant humans would have the most RIGHTS and then it would decrease (evenly for boys and girls) until age 21. At age 21, nobody would have property rights (or property interests) greater than a need-based amount — the rest would be privileges. At age 21, everybody would have equal liberty interests and liberty rights and those would be self-executing. And at age 21 everyone would have life interests but those would be somewhat unequal between the genders for all people, in that the life interests of non-mothers (male and female) would be less than the life interest of mothers. So see, my “moral feelings” would not be very fair to Justice Scalia, would they?
If I could, I’d sentence Anthony Scalia to have a pair of testicles grafted onto his chin.