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. Ind.

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

    Pandoras box is open.

    December 11, 2012 03:32 pm at 3:32 pm |
  2. Sniffit

    In his dissent in Lawrence, he admitted that the Lawrence case made legalized gay marriage inevitable. He will now rule contrary to that admission in yet another fantastic feat of intellectual dishonesty. He's not hard to figure out: he decides what he wants the result to be before writing his decision and then shoe-horns the "reasoning" into it.

    He's a homophobe and a bigot and has no business being on the bench.

    December 11, 2012 03:34 pm at 3:34 pm |
  3. Al-NY,NY

    an activist judge if there ever was one. add in Clarence too

    December 11, 2012 03:42 pm at 3:42 pm |
  4. Joe from CT, not Lieberman

    As the Justice has pointed out – these are his considered opinions. Will they weigh in when he makes his decision on DOMA? I expect it to, just as I expect the other justices it use their own considered opinions, too. Say what you will either for or against him, you always know where Justice Scalia stands on any issue, and why he does. I don't have to agree with him (and I don't 90% of the time) to respect him. Too bad I can't say the same about Roberts who spoke one way during his confirmation hearings and then basically overturned everything he said he stood for once he became Chief.

    December 11, 2012 03:44 pm at 3:44 pm |
  5. Sid Prejean

    If the state can ban activity deemed immoral, how about strapping a guy to a table and filling his veins with poison?
    I guess professing to be "pro life" has it's limits, doesn't it, Nino.

    December 11, 2012 03:46 pm at 3:46 pm |
  6. M. J Meyer

    I think most of us know what the opinion of this justice is going to be. What I think is going to be interesting is what John Roberts will decide - he is starting to emerge to be his own voice as he perceives the needs of the nation as a whole society. This is an important case for Roberts, as it will add strong bricks to the emerging pathway of his legacy as a reflective justice.

    December 11, 2012 03:47 pm at 3:47 pm |
  7. Thomas

    Scalia regards himself not as a Supreme Court Justice , in his mind he is Pope !

    December 11, 2012 03:48 pm at 3:48 pm |
  8. Data Driven

    Hardly sounded like an "ad absurdum reductio" argument to me; the comments were serious within a serious context.

    In any case, similar arguments were used for the "separate-but-equal" laws, mixed-race marriage bans, and so on. You're out of touch and out of time, Scalia. When you're finally off the Court, you won't be missed by those who love liberty - personal liberty for ALL Americans.

    December 11, 2012 03:51 pm at 3:51 pm |
  9. sonny chapman

    A big mouth to go along with his little heart.

    December 11, 2012 03:53 pm at 3:53 pm |
  10. Ronald G. Kirchem

    All decent people should hope that this nasty and ugly old Fascist dies soon.

    December 11, 2012 03:53 pm at 3:53 pm |
  11. Facts don't Lie

    @ Al-NY,NY

    I agree with you 100%...This guy AND Thomas need to go to right wing la la land.

    December 11, 2012 03:56 pm at 3:56 pm |
  12. CSM

    Scalia should step down. These comments are not becoming of a U.S. Supreme Court Justice whatsoever.

    December 11, 2012 04:03 pm at 4:03 pm |
  13. judy

    Scalia is a repo clone and it is not hard to see where he stands. Hopefully in the next 4 years we will get to add several judges. And get these dinosaurs to retire.

    December 11, 2012 04:04 pm at 4:04 pm |
  14. Sniffit

    You want to have some fun with reductio ad absurdum, Justice Bigotpants? OK...let's do that:

    "Many Americans do not want persons who openly engage in being black as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as neighbors on their street...they view this as protecting themselves and their families from a race that they believe to be inferior, immoral and destructive."

    Or hey, let's play everyone's favorite game....

    "Many Germans do not want persons who openly engage in being Jewish 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."

    December 11, 2012 04:05 pm at 4:05 pm |
  15. Sniffit

    I was wondering when we'd get to the posterchild for the dying generation that's holding us back....

    December 11, 2012 04:06 pm at 4:06 pm |
  16. walleye46

    I believe Scalia's EXTREME views influence his Supreme Court decisions. He should be REMOVED.

    December 11, 2012 04:06 pm at 4:06 pm |
  17. Drew

    Sure he may be anti-gay, but Kagen may be pro-gay.... I think we can label each one of the justices as "anti" or "pro". Each one has personal beliefs, their duty on the court is to put those aside and interpret the law. This article is trying to sensationalize the news.

    December 11, 2012 04:11 pm at 4:11 pm |
  18. Larry in Houston

    well – another good thing about obama in office, is the fact that by the time the next election cycle rolls around, he will have appointed at least 1 more – possibly 2

    December 11, 2012 04:16 pm at 4:16 pm |
  19. Marie MD

    Imaghine that an old catholic fart on the supreme court against gays. Has he looked at his church and its priests lately?

    December 11, 2012 04:37 pm at 4:37 pm |
  20. Wilson

    Scalia is right.

    December 11, 2012 04:51 pm at 4:51 pm |
  21. Squigman

    This man is way past to point of usefulness, and too opinionated to be a judge.

    December 11, 2012 04:51 pm at 4:51 pm |
  22. Sniffit

    "an activist judge if there ever was one. add in Clarence too"

    I dunno if you can quite call someone "activist" who rules by pointing at Scalia and simply saying "what he said." As far as I've ever been able to tell, Thomas has no beliefs of his own and is by far the dimmest bulb on the SCOTUS tree.

    December 11, 2012 04:55 pm at 4:55 pm |
  23. Bill

    Time to retire Guido.

    December 11, 2012 05:22 pm at 5:22 pm |
  24. Sorensen

    Old Scalia is getting more and more extreme and irrelevant. He even looks more and more like Limbaugh.
    So it all fits
    The "supreme" court is quickly sliding into ridicule and irrelevance.

    December 11, 2012 05:26 pm at 5:26 pm |
  25. nri1998

    A judge is not a moral police. Some people consider eating beef immoral. So, are we going to ban serving beef? Why is that baggers shout so much about the constitution but understand the least about it? Scalia doesn't have the temper, intelligence or wisdom to be a judge.

    December 11, 2012 05:30 pm at 5:30 pm |
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