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Scalia defends comparing laws against homosexuality to murder

December 11, 2012|By David G. Savage
  • Supreme Court Justice Antonin Scalia, seen last year, was pressed on his views about same-sex marriage.
Supreme Court Justice Antonin Scalia, seen last year, was pressed on his… (Jewel Samad / AFP/Getty…)

Confronted by a gay student at Princeton University, Justice Antonin Scalia defended his past writings comparing laws against homosexuality to those prohibiting bestiality and murder, saying he was arguing that many laws are based on society’s moral feelings.

“If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia asked in response to a question. “Can we have it against other things? I don’t apologize for the things I raise.”

Scalia said he was not equating homosexual conduct with bestiality or murder. “It’s a form of argument that I thought you would have known, which is called the reduction to the absurd,” he continued. “I’m surprised you aren’t persuaded.

The exchange took place Monday evening, just three days after the Supreme Court agreed to rule on the constitutionality of laws against gay marriage. Scalia was at Princeton to lecture on the Constitution and promote his book, “Reading Law: The Interpretation of Legal Texts.”

TIMELINE: Gay marriage through the years

According to several news accounts, Duncan Hosie, a student who identified himself as gay, said he found it extraordinarily offensive that Scalia had linked homosexual sodomy to bestiality and murder in his dissent in Lawrence v. Texas.

In the 2003 decision, Scalia harshly criticized the court’s decision that struck down a Texas anti-sodomy law that had been used to convict a gay man of having sex with another man in his own apartment. The opinion by Justice Anthony Kennedy overturned a 1986 ruling in Bowers v. Hardwick that had upheld state sodomy laws.   

Scalia wrote in his dissent:

“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, ‘furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,’ …The Court embraces instead Justice [John Paul] Stevens’ declaration in his Bowers dissent, that 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,' . . . This effectively decrees the end of all morals legislation. “

He also questioned whether the laws against same-sex marriage can survive if “moral disapproval” is not a reasonable basis for upholding them, in effect predicting the cases the court agreed to hear Friday.

“Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct . . . and if, as the Court coos (casting aside all pretense of neutrality), ‘[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution.’”

In 1996, Scalia dissented when the court struck down an anti-gay initiative from Colorado. There, he made a reference to murder:

“The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even ‘animus’ toward such conduct.  Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct.”

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david.savage@latimes.com

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