Scalia defends past comments some see as anti-gay
December 11th, 2012
03:28 PM ET
10 years ago

Scalia defends past comments some see as anti-gay

(CNN) – As the nation's top court prepares to tackle the contentious issue of same-sex marriage, one of its most conservative justices defended past writings linking bans on homosexual sodomy to bans on sex with animals and murder.

Speaking at Princeton Monday, Associate Justice Antonin Scalia said his previous comments, made in multiple Supreme Court dissents, were effective in making the argument that legislatures should be able to ban behavior deemed immoral.

When a questioner who identified as gay asked whether making such comparisons was necessary, Scalia said "I don't think it's necessary but I think it's effective."

"If we cannot have moral feelings against homosexuality, can we have it against murder, can we have it against these other things?" Scalia asked, according to an audio recording provided to CNN by someone who attended the event, which was meant to promote Scalia's new book, "Reading Law: The Interpretation of Legal Texts." The website of Princeton's department of communications said more than 700 people attended the session.

Scalia said his dissents were meant to be "a reduction to the absurd," not a comparison between homosexual acts and murder.

He did not specifically reference the court's decision to hear arguments involving the federal Defense of Marriage Act, which denies federal benefits to same-sex couples legally married in their own state. The court is also slated to hear a challenge to California's Proposition 8, a voter-approved referendum that took away the right of same sex-marriage that previously had been approved by the state's courts.

In the initial question, Scalia was asked about his dissent of a 2003 Supreme Court ruling tossing out state laws against homosexual sodomy – a decision Scalia said "called into question" state bans against "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." The case was Lawrence v. Texas.

In the dissent, Scalia - joined by Chief Justice William Rehnquist and Justice Clarence Thomas - said the court "has largely signed on to the so-called homosexual agenda."

"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," Scalia wrote. "They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

"Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda though normal democratic means," the justice continued. But he wrote the court is "departing from its role in assuring, as neutral observer, that the democratic rules of engagement are observed" - in other words, allowing the legislative branch of the federal government to determine law.

Jeffrey Toobin, CNN's senior legal analyst, said Tuesday Scalia was raising the question, "Is moral disapproval alone a legitimate basis for a government to act?"

"His position is moral disapproval of homosexuality, of bestiality, of murder is legitimate grounds for government action. The question is whether four other justices agree with him," Toobin said.

Last week the Supreme Court agreed to hear two constitutional challenges to state and federal laws dealing with the recognition of gay and lesbian couples to legally wed.

In a one-page order on Friday, the court took on what will be one of the most important issues in its history. The decision to review the matter came just weeks after voters approved same-sex marriage in three states. Oral arguments will likely be held in March with a ruling by late June.

There is "absolutely no way" Scalia will recuse himself of the case after making his comments Monday, said Toobin. There are no specific guidelines for Supreme Court justices to step down from a case they have a personal involvement with.

"He's in this case for better or worse," Toobin said.

Scalia excused himself in a high-profile 2004 case over whether public school children should be forced to hear the Pledge of Allegiance being recited in the classroom. He had made comments on the topic at a Virginia rally months before the arguments.

CNN's Bill Mears contributed to this report.

Filed under: Antonin Scalia
soundoff (35 Responses)
  1. Randy, San Francisco

    No need to guess which way Scalia, Thomas, and Alito will vote on the gay marriage issues. Strict interpretation of the Constitution goes out the window when it comes to upholding the conservative agenda.

    December 11, 2012 05:31 pm at 5:31 pm |
  2. Pander Bear

    Scalia is the Roger Taney of his time.

    December 11, 2012 05:32 pm at 5:32 pm |
  3. Claudia, Houston, Tx

    Judges are human and must evolve in their opinions and thinking processes but age plays a big factor especially when they are seniors. What Scalia says is what he believes, end of story.

    December 11, 2012 05:34 pm at 5:34 pm |
  4. Dave

    Scalia's remarks are prejudicial, and show that he has a mindset unlikely to consider justice for this case. He should recuse himself based on his previous writings alone. This is a LEGAL issue not a personal choice issue.

    December 11, 2012 05:35 pm at 5:35 pm |
  5. judith

    Scalia is entitled to his opinion, but he should not let the personal view cloud his reasoning in a high court ruling.

    December 11, 2012 05:38 pm at 5:38 pm |
  6. MashaSobaka

    Conservative (il)logic is just too hard to follow. At any rate this man is far too opinionated to be a judge. Judges should look at laws, not at personal "moral" gut feelings. There is no indication that he will do so. God willing, he'll be replaced by the end of our President's term.

    December 11, 2012 05:38 pm at 5:38 pm |
  7. cnn117

    i've heard this guy conduct himself in hearings and he sounds more like an opinionated policican rather than than supreme justice. terrible

    December 11, 2012 05:38 pm at 5:38 pm |
  8. Johan S

    You can't call him a complete failure. After all, he did successfully achieve his goal of reducing himself to absurd.

    December 11, 2012 05:42 pm at 5:42 pm |
  9. Sniffit

    "Allow same sex marriage and all it's legalities can be applied to Bisexuals marrying one of each sex at the same time."

    Who really cares if they did as long as the gov't only allowed one joint filing of tax returns and one marriage deduction? I mean, if 3 people each mutually want to share rights to do things like visit in the hospital or have a private contract (which is all marraige is) that would give any two of them the right to decide on the third's health care if hospitalized, then who freekin cares? The only thing you should be worried about is the fairness of the financial end of it.

    December 11, 2012 05:43 pm at 5:43 pm |
  10. toydrum

    Regardless of which side of ANY issue you come down on, our justice system relies on judges (including Supreme Court justices!) to be enter into a case with an open mind.

    Scalia sounds like he has made a decision before even hearing arguments. This is equivalent to a jury deciding a defendant is guilty before opening arguments or any evidence is presented. This is not healthy for our justice system or the faith we need to be able to have in it.

    December 11, 2012 05:44 pm at 5:44 pm |
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