Tag Archives: Antonin Scalia

General discussion

Never argue with a Sicilian when homosexual sodomy is on the line

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That’s Sicilian

It’s slippery slope week.

Here’s a snippet from Justice Antonin Scalia’s dissent on yesterday’s SCOTUS ruling on gay marriage:

When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at  578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. 

Justice Scalia may indeed be correct about the alleged inconsistency; The court may have previously held that Lawrence v Texas wouldn’t entail gay marriage, but then in Windsor they use the legality of “homosexual sodomy” to justify not discriminating against gay marriages.  This, he maintains, shows the slippery slope from “homosexual sodomy” to gay marriage.

A few points.  First, since I’m not a legal scholar, I don’t know if the court has to maintain its promises–or whether the court can make promises like this.  The gay marriage case wasn’t before the court at the time, and, as far as I know, the court decides only the cases it has before it.  It would seem completely wrong for them to adjudicate such things in advance.

Second, inconsistencies are not ipso facto signs of dishonesty.  I like to think my current correct views are inconsistent with my past incorrect ones.  I also sincerely hope that my future correct views are inconsistent with my current incorrect ones.

Third, not all slippery slopes are fallacious.  The court has recognized a right to “homosexual sodomy.”  This means that homosexual relationships are not inherently inferior to heterosexual ones.  This does in fact seem to entail that homosexual commitments differ in the same regard: i.e., not at all.

General discussion

Moral feelings

I posted something the other day about Pastor Rick Warren's comparison of homosexual acts to violent assault.  Seems like not really an apt comparison.  Now comes Antonin Scalia with an even better, I mean, worse, argument (from the Huffington Post):

"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.

Then he deadpanned: "I'm surprised you aren't persuaded."

I'm perplexed by the first bolded claim, as Legislative bodies in the US are limited by the Constitution as to what they can ban–they can't ban acts of religion can't they?  Anyway, I don't have the full quote or context so whatever.

The other claim, the reduction to the absurd, is rather odd.  I imagine no one doubts the possibility of having "moral feelings" against homosexuality.  The question, of course, is whether such feelings are (a) morally or rationally justified and (b) legally enforceable.  I suppose the latter question is the one that ought to concern Scalia.  So there is an equivocation in Scalia's claim over "cannot."  You can have all the feelings you want against anything.  Some of those might be morally justified, some might be legally enforceable.  No law, however, can take away your ability to disapprove of things.

As if this were not bad enough for a big mind such as Scalia's, this equivocation is then used as a lever to push the little cart down the slippery slope: if we cannot ban homosexuality, then we cannot ban murder!  That's not reduction to the absurd, it's just absurd.