Can We Stop Being Surprised at Scalia's Remarks on Gays Now?

The man dissented when the Supreme Court ruled that gay sex was not a moral crime. His views on the issue are longstanding and plain.

Brendan McDermid/Reuters

Once again this week, conservative Supreme Court Justice Antonin Scalia outraged liberals by saying something impolitic and offensive about gays. People need to recognize that Scalia's views in this area are not news. It's been his carefully considered legal judgment, laid out for nearly a decade in comments and rulings from the bench, that widely shared negative moral judgments are an acceptable basis for legislative action under the U.S. Constitution, and that the fact that negative sentiments about homosexuality have historically been the dominant view ought to be accorded significant weight in considering cases involving it.

The interesting thing to follow as the Court considers two new cases involving the fate of same-sex marriage -- and really, in the years ahead, as well -- is how Scalia reacts to the growing change in public opinion about gay relationships and the growing legislative success of the gay-marriage movement. To the extent that he has continually based his conservative judicial statements about gays on the Anglo-American historical record -- which he accurately describes as deeply opposed to homosexuality as a matter of public policy -- what might changes in public opinion and state legislation mean for his judicial views?

The AP reported on Scalia's latest finger in the eye of contemporary opinion:

Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.

"I don't think it's necessary, but I think it's effective," Scalia said, adding that legislative bodies can ban what they believe to be immoral.

Scalia has been giving speeches around the country to promote his new book, "Reading Law," and his lecture at Princeton comes just days after the court agreed to take on two cases that challenge the federal Defense of Marriage Act, which defines marriage as between a man and a woman.

Some in the audience who had come to hear Scalia speak about his book applauded but more of those who attended the lecture clapped at freshman Duncan Hosie's question.

"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.

Cue the outrage machine! Scalia is comparing gay sex with murder! Except that he wasn't -- not really. He was, provocatively (and with what would seem a clear intention to annoy), asking what the basis of legal bans is. Many would answer, harm to individuals. Scalia was echoing what has been his longstanding position: that centuries of moral sentiment are an adequate basis for upholding laws under the Constitution. Already in 2003 a majority of the Supreme Court disagreed with him -- and that's why his legal thinking on these issues has not been the law of the land for some time.

Tuesday was hardly the first time Scalia has made the case for the constitutionality of commonly held disapprobations as carrying more weight than contemporary petitions for relief from democratic (if not demographic) minorities (i.e., those who are underrepresented in elective office and have not been able to use legislative bodies or democratic elections to find relief). Here's the justice just last October in remarks at the American Enterprise Institute:

"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said...

But most important in understanding Scalia's thinking was his 2003 dissent, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas, in the Lawrence v. Texas ruling that overturned the 1986 Bowers v. Hardwick decision upholding the constitutionality of state anti-sodomy statutes. Wrote Scalia in his dissent:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. 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....

[T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal....

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means," Scalia wrote. "Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best."

What he dissented from in Lawrence was "the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

The key question in the months ahead: Now that gay marriage and gay rights are being legislatively upheld by individual state legislatures and ballot initiatives, will Scalia support allowing the states the freedom to decide their laws, one by one, according to the moral judgments of their voting citizens? Or will he seek to use the Supreme Court to uphold a federal law -- the Defense of Marriage Act -- to impose a historic negative moral judgment on gays who seek federal recognition for the marital relationships states now permit them to have?

"I would no more require a State to criminalize homosexual acts -- or, for that matter, display any moral disapprobation of them -- than I would forbid it to do so .... [I]t is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best," Scalia wrote in 2003.

How the staunch defender of democratic processes deals with actual democratic changes in the years ahead will be fascinating to watch.