DOMA: Justice Scalia Reaffirms Legislating Morality, Will Uphold Prop 8


On Monday, Justice Antonin Scalia, one of the nine Supreme Court Justices who will rule on two cases regarding same-sex marriage in the next session, publicly discussed his views on homosexuality and the Constitution. As recently as October, he scoffed, "Homosexual sodomy? Come on. For 200 years, it was criminal in every state." Given Scalia's strict textualist views on the Constitution and his position on legislating morality, his most recent comments reaffirm that he will be a dissenting voice when it comes to marriage equality in the courts.

Scalia, potentially the most conservative member of the Court, was asked during a lecture at Princeton University yesterday about having compared sodomy laws to laws against bestiality. He answered that the comparison was a "reduction to the absurd," commenting, "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Duncan Hosie, the college student who posed the question, explained to The New Civil Rights Movement that Scalia prevented him from posing his question in its entirety.

In your dissent in Lawrence v. Texas, you equated laws against gay sex to laws against bestiality.You wrote, “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.”Justice Scalia, I’m gay, and as somebody who is gay I find these comparisons extraordinarily offensive. I think there is an fundamental difference between arguing the constitution does not protect gay sex, which is a defensible and legitimate legal position I disagree with, and comparing gays to people who commit murder or engage in bestiality. Do you have any regret or shame for drawing these comparisons you did in your dissents?

In Lawrence v. Texas, the Supreme Court ruled 6-3 that a Texas law banning sodomy between gay couples was unconstitutional, claiming that the law was an attempt to "control their destiny by making their private sexual conduct a crime."

Scalia dissented, writing, "Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation ... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

"What a massive disruption of the current social order, therefore, the overruling of Bowers entails," he concluded.

Justice Scalia considers himself an "originalist"  or a "textualist" when it comes to the Constitution. He does not believe in amending the Constitution so that it better adheres to contemporary social mores. Rather, he believes that new "rights" — such as the "liberty ... [granted] to adult persons in deciding how to conduct their private lives in matters pertaining to sex" in the Texas case — should be created by passing new laws. He reiterated this view on Monday, saying that the Constitution isn't a living document: "It's dead, dead, dead, dead."

Scalia is expected to vote to uphold the Defense of Marriage Act (DOMA) and/or California's Prop 8 in the upcoming Supreme Court challenges based on his aforementioned stance regarding legally enforcing moral principles, thus allowing the federal government to continue to deny benefits to same-sex couples.