The Associated Press reports on a question posted to Justice Scalia at a lecture at Princeton University:
Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder. [ . . . ]
“It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,’” Scalia told Hosie of San Francisco during the question-and-answer period. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.
Even if one supports so-called gay rights, this is a regrettably unthinking way to advance them. To state the obvious, Scalia’s point was not that homosexuality is equivalent to murder but that the law inevitably makes a moral judgment in banning, or allowing, either one. This creates an equivalence between the two only if you think that all things banned are thereby necessarily considered equally bad. Yet we somehow manage to see a difference between a bomb and a Big Gulp, even though New York’s laws frown on both.
There is a great deal of justified worry about how the advance of gay rights will harm religious liberty. At this stage, though, subtlety and reason are suffering even worse violence.
Update: Here are the passages under dispute. The first from a 2006 dissent in Romer v. Evans:
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 un-American. 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.
The second is from a 2003 dissent in Lawrence v. Texas:
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,” Scalia wrote in dissent. “Bowers held that this was a legitimate state interest. The court today reaches the opposite conclusion. . . .This effectively decrees the end of all morals legislation.
December 11th, 2012 | 4:13 pm
Even if one supports so-called gay rights, this is a regrettably unthinking way to advance them. To state the obvious, Scalia’s point was not that homosexuality is equivalent to murder but that the law inevitably makes a moral judgment in banning, or allowing, either one.
It’s not clear to me exactly what sayings or writings of Scalia were under scrutiny.
However, what I can say is that if you keep repeating a laundry list of alleged evils—homosexuality, bestiality, pedophilia, incest—over and over, you’re making a statement. Those who say, “Oh, well, if we allow same-sex marriage, what’s to stop adults from marrying children, people from marrying their dogs, brothers from marrying their sisters, and the cast of Glee from marrying the Mormon Tabernacle Choir?” are not really asking a question. They are saying, “Same-sex marriage/homosexuality is like . . . .”
There is a great deal of justified worry about how the advance of gay rights will harm religious liberty. At this stage, though, subtlety and reason are suffering even worse violence.
I don’t want to put the moderator to the test with some examples of “subtlety and reason” from these very columns, but let me try just two:
I can see real and difficult questions about how the advance of gay rights might affect religious liberties. But there are also serious questions about how religion opposes, campaigns against, and attempt to block gay rights—sometimes slandering gay people in the process—not necessarily because they feel threatened but because they “know” God’s will and intend to go as far as they can to impose it.
December 11th, 2012 | 5:33 pm
David:
I get what you’re saying, and Christians need to consider how they talk about marriage and gay rights as a matter of public policy (i.e. the fact that homosexual sex/relationships are morally wrong isn’t itself sufficient reason to outlaw them, as we don’t impose all moral requirements by law anyway), but the applicable legal questions and political questions differ in character.
The legal question must consider how laws against sodomy are like laws about murder because the same analytical framework must be applied to the validity of both. The courts are not (supposedly) empowered to create the content of the legislative statutes, but only to interpret them. It’s up to the legislature to decide whether sodomy is like murder in other ways. So as a political matter, we must consider the differences and discuss them differently, but Justice Scalia and other legal professionals must discuss and analyze sexually-based and other criminal laws together and determine whether the differences are legally (not merely morally) significant.
December 11th, 2012 | 6:38 pm
@David: The two issues you raise can be dealt with as issues of fact. Are the statements true? If they are, then where is your complaint? If they are not, then where is your counter-argument? The first comes from an article noting that those who self-identify as LGBT have a higher average salary than the population at large, so whatever may have been, they seem to have overcome a great deal of it. The second is more problematic and needs direct support with data if it is to be considered.
But your approach suggests the truth doesn’t matter. The statements are simply wrong. And you follow up with a statement equally as questionable as either of the two. Perhaps more so as it is not amenable to data where you mind read. Maybe you should adopt the standards you ask of others?
December 11th, 2012 | 9:18 pm
David, there’s no such thing as a right to be gay. So Christians can’t really be harming such a right. John Finnis has several great articles on natural law, liberalism, and sexuality that I’d suggest reading. Your statement could mean one of two things; you don’t like it when people say that it’s a sin and detrimental to the moral fiber of the country that there are gay people. Or you actually think there are people trying to illegalize sodomy. If the first, the state is well within its role to take a stance on what it views the best vision for human flourishing to be. The state has an interest in promoting and educating its citizens as to the correct view of human sexuality. For the greater good of respect for the law (as Thomas wrote), the state will refrain generally from making practices illegal that are only harmful directly to oneself or to another willing agent. That does not mean that citizens should not express their views and that the state can’t express a preference for a view.
Marriage, however, is a natural kind, and one that the state has an interest in promoting. Therefore, given the function of man and woman in that they unify in order to create a family and preserve society and a host of other goods, it is good for the state to attach community goods to such a union. There is no reason to do the same for same-sex couples, as there is no natural good that obtains in such a union. In fact, it would be bad for the state to promote a false and harmful view of sexuality.
December 12th, 2012 | 5:34 am
David,
“Those who say, “Oh, well, if we allow same-sex marriage, what’s to stop adults from marrying children, people from marrying their dogs, brothers from marrying their sisters, and the cast of Glee from marrying the Mormon Tabernacle Choir?” are not really asking a question. They are saying, “Same-sex marriage/homosexuality is like . . . .”
I don’t buy this argument. I think these are fair questions, and I think Scalia and others are right to raise them. I think they’re wrong about gay marriage, but they have to starting asking questions somehow if they’re going to understand how others think, and this is as likely a starting place as any.
“But there are also serious questions about how religion opposes, campaigns against, and attempt to block gay rights—sometimes slandering gay people in the process—not necessarily because they feel threatened but because they “know” God’s will and intend to go as far as they can to impose it”
Some time ago, you posted a great link to a TED talk about how people go through three stages when discussing a point of disagreement with someone. First, they think the person is ignorant, then stupid, and finally deceptive. I think that TED talk was right on the money, so I would say the problem isn’t that the Christian Right overly certain and intrusive. I would say that the Christian Right misunderstands the issues, is too willing to let stereotypes stand in for the truth, has forgotten the importance of pastoral ministry, sees things through a fog of nostalgia, is generally unable to respond to the justice claims of new groups, takes credit now for positions they would have opposed in the past, etc.
I would list the flaws of liberal Christians like myself, by why would I want to do that? ;-)
December 12th, 2012 | 5:51 am
Robert,
“David, there’s no such thing as a right to be gay.”
Of course, there is. You may not recognize that right, but more and more people of good faith are recognizing that the health of society improves when gay people are recognized, live in peace and acceptance, and are supported in forming their own life-long commitments to one another.
We’ve seen the alternative, and it wasn’t healthy: people pretending to be in love with members of the opposite sex when they were not, people pretending that they were like everyone else, and others mocking, belittling, and sometimes hurting those who seemed different as well as others who pretending not to know that close friends and family were gay.
Bull Connor wasn’t able to shove people back into the back of the bus. How could you possibly stuff gays back into the closet?
What I hear most conservatives saying is that they don’t support discrimination in hiring or housing, but they support other forms of discrimination: hotels, retail services, marriage, etc. The message is that gays can come only so far out of the closet but not all the way. That kind of position gets harder to hold every day, which is why anti-gay positions continue to lose ground.
December 12th, 2012 | 6:10 am
“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”
Indeed we can have moral feelings against both; but, in neither case are moral feelings necessary or sufficient for the intervention of the criminal law.
Crimes have traditionally been known as “public wrongs.” Murder is illegal, primarily because of the widespread alarm and insecurity it causes, thereby endangering public order. Neither mere moral outrage, nor the injury to the private individual would justify classifying it as a crime.
December 12th, 2012 | 7:09 am
Her is an account in the Los Angeles Times that quotes passages from Scalia’s opinions that the questioner no doubt had in mind.
December 12th, 2012 | 8:04 am
The two issues you raise can be dealt with as issues of fact. Are the statements true?
Mike Melendez,
I am not sure how you evaluate, “We should all be so discriminated against,” as a true or false statement. Likewise, exactly how do you argue against a statement that “there are plenty of LGBT people who are perpetrators of all kinds of harmful actions, behaviors, and/or violence to adults and children (sexual assault, abuse, harassment, aggressive unwelcome advances, battering, murder…). The majority have impunity for many of their destructive acts”? I am particularly intrigued by how one might check the truth of the last sentence. The “majority” being referred to is a majority of “plenty of LGBT people.” How could we possibly quantify a statement that the majority of plenty of people have impunity for many of their acts?
But your approach suggests the truth doesn’t matter. The statements are simply wrong.
Something can be wrongheaded even if it is not factually wrong. I am talking about tone and attitude. You are fond of accusing me of mind reading, but what I am doing here is just reading. Certainly it is quite possible to be mistaken about a person’s tone or attitude or even to mistakenly believe them to have made a point exactly opposite of the one they sincerely intended.
But suppose we were discussing race, and someone said:
Would you really assume the person was making a factual argument and the appropriate response was to make a factual counter-argument?
Matthew Schmitz’s charge was that, because of the gay rights debate, “subtlety and reason are suffering even worse violence.” I am pointing out that not everyone who argues against gay rights argues with “subtlety and reason.” The two comments I quoted were not examples of “subtlety and reason.” No side in this battle has a monopoly on “subtlety and reason.”
December 12th, 2012 | 8:48 am
Scalia’s quoted statement is useless as an argument about the legality of SSM. You can draw a similar parallel between any morally deprecated behavior and those behaviors that are both immoral and illegal. e.g. If we allow divorce/remarriage, can we ban bestiality and murder? No one does that, because no one has a tactical political interest in making people think divorcees are like murderers. Scalia doesn’t appear to be making an argument in good faith. He’s performing the rhetorical equivalent of push polling.
December 12th, 2012 | 9:06 am
His argument to the student went like this, “If we cannot have moral feelings against homosexuality, can we have it against murder?” But there is not logic to this, since you can replace the first part with whatever you like, for example, “If we cannot have moral feelings against people of different religions from our own, can we have it against murder?” It seems like Scalia would know this, so I think he is just abusing his position of authority, coming out to law students with what looks like a highfalutin logical form, but which is really senseless.
December 12th, 2012 | 9:39 am
“Murder is illegal, primarily because of the widespread alarm and insecurity it causes, thereby endangering public order. Neither mere moral outrage, nor the injury to the private individual would justify classifying it as a crime.”
Aside from evincing an ignorance of legal history, this would imply that murders that do not cause widespread alarm and insecurity would not properly be crimes.
On the first count, even a glance at Blackstone shows that crimes were not considered public only because they have public effects, but rather because one has violated a duty that arises by virtue of being a member of a political community. Thus an assault would give rise to both a private action (i.e., lawsuit) of the injured individual and a public action (i.e., prosecution) on the part of ones political community.
Blackstone includes both religious and sexual offenses as public wrongs. Though not all moral duties are public wrongs, a moral duty may be a public wrong when there is “a public law either forbidding or requiring it.” Even imagining the murder of the king could be considered a crime because it touched on a socially imposed obligation–even though it has a purely private effect.
On the second count, it would follow from Michael PS’ argument that our police could and should reduce crime by not seeking to uncover serial killers if they would otherwise go undetected, thus preventing public alarm and insecurity.
December 12th, 2012 | 10:47 am
Thomas Martin Cothran
The classification of crimes as “public wrongs” goes back to the quaestiones publicae goes back to, at least, the late Republic.
Now murder, in particular, was originally treated as a wrong against the kindred, to be prosecuted by the heir. It was the Cornelian Law of 82 BC that made it a public wrong and anyone might act as an accuser ad vindictam publicam.
The underlying logic of the quaestiones, and, particularly the quaestiones perpetuae was precisely that the conduct they penalised affected, not only individuals, but the wider community.
Now, in what way did these “public wrongs,” affect the community? Some by being directed against the state and its administration and others by their tendency to create insecurity. That is why we do not permit the relatives of a murder victim to accept a pecuniary compromise, as Islamic law does.
Blackstone attempted, not for the first time, to apply Civil Law concepts to the Common Law, to which it was not particularly well adapted.
December 12th, 2012 | 10:58 am
I think it is interesting to note that the kinds of statements Scalia has made to which the Princeton student took exception have been made in Scalia’s dissenting opinions. For example:
The issue seems to be that Scalia believes the majority has the right to say, “We believe such-and-such a behavior is immoral. Therefore, we are justified, based on that belief, to prohibit it by law.” What I think Michael PS is telling us is that the opinion of the majority may be that a certain behavior is morally wrong, but this is not sufficient to justify prohibiting it by legislation in the French legal traditions or in many other legal traditions, as well. Views similar to those of other legal traditions have gained significant ground in American legal tradition, and Scalia is speaking out against what some may consider the growing justice and maturity of American legal tradition, and others may consider a tragic loss of “traditional values.”
December 12th, 2012 | 11:07 am
Scalia was, in the first place, objecting to the Court’s unnecessary denigration of those in opposition to homosexual rights as being motivated by “animus,” which is defined as “malevolent ill will,” full stop. Scalia then counters with an implied question: Exactly when did animus become un-American? I would ask further what business is it of a court to issue such an obiter, which is to say, to “disapprove” of a legislature’s opinion and to use that disapproval to overturn a statute when it is the opinion that provoked the law’s passage in the first place? It was the considered opinion of the legislature of Colorado that was under review, and that opinion is used in Stevens to indict itself. It is the grossest form of question begging, or, as George Will likes to say, another example of the Supreme Court practicing sociology because humdrum judicature does not provide latitude ample enough to flaunt its high opinion of itself.
The Court in effect found the Colorado legislature to be insufficiently enlightened, or, as they put it, to be “atavistic[!]” as if the justices were—or ever are—in a position to discern the truth of such an opinion. Their law degrees gave them licenses to practice law, not wisdom-mongering.
Most of the attacks on Scalia, it seems to me, do not sufficiently appreciate his deliberate use of the word “feelings” to characterize the moral judgments that the student objects to. He is asking, in effect, whence arises a “moral feeling”? But also, is it even necessary, not to mention proper, for a court to dismiss such “feelings” out of hand without so much as a nod to any actual positive law or settled legal practice? Is it not mischief and effrontery for members of the Court to then use what is surely no more than their disdain for community opinion to overturn a duly-enacted statute? Even in the case of slavery, Congress actually had to pass the Thirteenth Amendment before involuntary servitude could be eliminated as a matter of law rather than conquest. Moreover, the moral feelings of the ratifiers certainly played a very large part, arguably the largest, in their proposing the Amendment in the first place.
In the current epoch a lawmaking body no longer need trouble itself to pass statutes off its own bat. No, of course not. That would be savagely atavistic, and we can’t have that. It is sufficient nowadays that a legislature be prompted to “Get with the program for heaven’s sake!” by a Court having a decidedly low opinion of its legislators.
December 12th, 2012 | 11:42 am
Michael,
I shouldn’t have to remind you that law in the United States arises from English common law, which considered as public offenses not only crimes against the state but also acts that were believed to damage the moral fabric of society, such as–to cite an obvious example–sodomy.
Further exacerbating the wild inaccuracy of your argument is the fact that, for the Romans, most (but not all) crimes were a matter of private law.
Your argument therefore is that “moral feelings [are neither] necessary or sufficient for the intervention of the criminal law,” because crimes are a traditionally a matter of “public wrong,” and then you appeal to Roman law, which classifies most (but not all) crimes as a matter of private law, while ignoring the Anglo-American legal tradition which has a long tradition of criminalizing private behavior on moral grounds. That argument doesn’t even need someone else to refute it.
December 12th, 2012 | 11:48 am
The Court in effect found the Colorado legislature to be insufficiently enlightened, or, as they put it, to be “atavistic[!]” as if the justices were—or ever are—in a position to discern the truth of such an opinion. Their law degrees gave them licenses to practice law, not wisdom-mongering.
Joe Sansonese,
Could you please document the Supreme Court’s alleged characterization of the Colorado State Legislature as “atavistic”? Here is a link to the Court’s decision in the case (Romer v Evans). The word atavistic is not to be found anywhere in the document. Where, then, could the Court have said such a thing?
December 12th, 2012 | 12:16 pm
Please see “Justice Stevens’ Religion Problem
Robert F. Nagel,” First Things, June–July 2003.
Stevens did not use those words in Romer v. Evans but in his opinion in a later (2000) case involving the Boy Scouts, to characterize religious objections to homosexual conduct in general, so I regret giving the impression that he did.
From Nagel’s article, Stevens writing:
“’Like equally atavistic opinions about certain racial groups, these roots have been nourished by sectarian doctrine.’ . . . The passage is, as Michael Stokes Paulsen of the Minnesota Law School put it, a ‘slander, disparaging the good faith . . . of any religious worldview—such as those of [some] Christians, Jews, and Muslims—that adheres to traditional views of sexual morality.’
Reading the Nagel article it becomes clear that Stevens had been expressing such views about traditional morality since before Romer v. Evans.
December 12th, 2012 | 12:34 pm
“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.”
If one examines this list, one finds that most of them affect public order to some degree.
Fornication risked a child who might become “chargeable to the parish,” as the old writers have it. It was never a crime in England (except during the Commonwealth) or in Scotland either,but the mother and putative father of a bastard child were sent to the House of Correction, if they failed to give caution and surety to the Poor Law authorities that the child would not become a burden on the rates. Unless, that is, they were heritors, where their land was sufficient surety.
Bigamy is an attack on civil status.
Adultery risks the imposition of a spurious issue on the husband and his family. In France adultery was a crime for a married woman and her paramour until 1971, whereas a married man who committed adultery with a single woman committed no crime, although the moral guilt was the same. Only “notour adultery” was a crime in Scotland, as in living together &c
The prohibited degrees are are large topic, on which much ink has been spilt, especially around relationships of affinity.
I could go on.
In other words, they are more than ‘immoral and unacceptable,’ they all produce the kind of harm the legislator can properly take into account and over which he should be permitted a wide margin of appreciation.
December 12th, 2012 | 12:53 pm
Thomas Martin Cothran
Well, the quaestiones perpetuae covered a pretty wide range of crime, especially the quaestio de vi and de falsi and so on. Three of them dealt with murder and the French division of Parricide, Assassinat and Meutre precisely reflects that division.
That the development of the modern criminal law derived from the quaestiones, through later imperial practice and then though the Reception of Roman law is beyond doubt.
In 1791, the three crimes of blasphemy, sodomy and witchcraft were abolished, without a debate, because they were perceived as “offences against religion.”
December 12th, 2012 | 1:38 pm
Michael,
Now you appeal to the French civil law tradition, I suppose just to emphasize that there really is no cogency to be attained here.
Your argument is that crimes traditionally have been “public wrongs,” and therefore do not include legislation based on morality. When it is pointed out that the Anglo-American legal tradition has a long history of criminalizing what is perceived as immoral behavior, you appeal to Roman law, a distinct legal tradition. When it is pointed out that the Roman tradition classified most crimes under private law rather than public law as you originally claimed, you continue to dissemble, and bring in the the French civil law tradition.
So that we do not have to suffer hasty appeals to the many legal systems of the world other than the only one which is actually relevant, perhaps we should just recognize two points:
1. The American legal tradition–our legal tradition–has, since the inception of this country, criminalized behavior on moral grounds, including sexual conduct such as masturbation and sodomy. Such legislation, for good or ill, is a traditional feature of our legal system.
2. Criminal laws necessarily involve at least some level of normative judgment.
December 12th, 2012 | 2:34 pm
The American legal tradition–our legal tradition–has, since the inception of this country, criminalized behavior on moral grounds, including sexual conduct such as masturbation and sodomy. Such legislation, for good or ill, is a traditional feature of our legal system.
Thomas Martin Cothran,
And Scalia’s complain is that the tradition is changing in spite of his best attempts to stop it. He certainly has a right to complain and to advocate on behalf of his views, but others have a right to cheer and also have a right to point out that, in contrast, other great legal traditions have long had different standards. It would be very strange if the only reference point we could use to evaluate American legal tradition were American legal tradition.
December 12th, 2012 | 3:49 pm
Thomas Martin Cothran
It is nonsense to suggest that Roman law classified a crime – by definition a public wrong – as an exclusively private injury or delict. Do you not see that is a contradiction in terms?
Theft was a delict, not a crime; vi raptorum bonorum was both a delict and a crime.
I am well aware that the customary law of England, like that of most of Northern Europe was based on no sound principles of jurisprudence whatsoever; in particular, it largely confounded the distinctions between private law and public law (not only criminal, but administrative.) It is only in comparatively recent times and under the influence of comparative jurisprudence that it is being rationalised, as was French Law in the period 1791 – 1804.
Of course, the criminal law is governed by normative principles: “Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law” and “Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law” and “The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence.”
I would add my own: history may instruct and warn, but cannot guide or control; that is the task of reason.
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