Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.(Source.)
"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. . . .
"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?"
My mom, Ann Althouse, links to that article and points out that Justice Antonin Scalia is "antagonizing — antoninonizing — students."
My thoughts on this:
1. I interpret Scalia's phrase "moral feelings against" to refer to disgust. He lends this an air of dignity by using the lofty word "moral," but what he's really talking about is a visceral or aesthetic reaction expressed by interjections like "Eww!" and "Yuck!" We need to think about whether it's actually legitimate for disgust to serve as a primary motivation and justification for passing a law. There's no question that there are good laws that prohibit behavior that happens to be found disgusting. But the question is whether mere disgust can justify a law that would otherwise not seem to have a rational justification. It's fine for people to be disgusted at the thought of a particular couple having sex or even showing any kind of affection. This could be based on any number of factors, including the couple's gender, age, or physical attractiveness. Most people would find it offputting to see certain couples do so much as kiss in a movie — more offputting than they would find a movie scene showing a brutal act of murder. There's a much wider audience for images of violence than for atonal chamber music, but as long as even 1% of the population finds that kind of music pleasant, some people are going to happily exercise their right to create it, no matter how large a majority experiences it as a bunch of noise with no redeeming value. I wouldn't want to live in a society where the presence or absence of such feelings of disgust and revulsion determined what kinds of behavior we're allowed to engage in.
2. I assume Justice Scalia realizes that mentioning gay people and murderers in the same breath is going to be very inflammatory to a lot of people, and isn't the best way to win over those who didn't already agree with him. (He winked at this by sardonically adding: "I'm surprised you aren't persuaded.") This doesn't mean his words were poorly chosen — he might have good reasons to try to stir up controversy over this. And, of course, he has a right to express his viewpoint in his own inimitable style even if he offends people. But while he's remarking on the way voters can make their decisions based on visceral repulsion, he might want to consider that many people are viscerally repulsed by the way he makes his point, and this may affect people's votes in future presidential elections.
3. What matters far more than anyone's visceral feelings about what is or isn't disgusting is this: Murder laws uphold the principle that everyone in a society should have equal rights and responsibilities.