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Justice Antonin Scalia Quizzed at NJ’s Princeton on Gay Issue

by Geoff Mulvihill
Tuesday Dec 11, 2012

PRINCETON, N.J. - U.S. Supreme Court Justice Antonin Scalia on Monday found himself defending his legal writings that some find offensive and anti-gay.

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.

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

Hosie said afterward that he was not persuaded by Scalia's answer. He said he believes Scalia's writings tend to "dehumanize" gays.

As Scalia often does in public speaking, he cracked wise, taking aim mostly at those who view the Constitution as a "living document" that changes with the times.

"It isn't a living document," Scalia said. "It's dead, dead, dead, dead."

He said that people who see the Constitution as changing often argue they are taking the more flexible approach. But their true goal is to set policy permanently, he said.

"My Constitution is a very flexible one," he said. "There's nothing in there about abortion. It's up to the citizens. ... The same with the death penalty."

Scalia said that interpreting laws requires adherence to the words used and to their meanings at the time they were written.

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  • , 2012-12-11 11:12:03

    Interesting that Mr. Hosie equates sodomy as a gay issue - in terms of numbers there are probably more straight people "commiting" sodomy.

  • WayGay, 2012-12-11 11:24:02

    The fact that justice Scalia equate gay rights in terms of ’reduction to the absurd’ seems to speak volumes.

  • , 2012-12-11 13:05:54

    The fact that Scalia even mentioned gay rights in the same sentence with gay rights is disgusting for someone in his position. Krystal mountaine

  • , 2012-12-11 17:03:09

    How can anyone equate murderer and sodomy? I guess next will be step into the 1950’s. Communities in the South will start outlawing interracial marriage because they have "moral feelings" against it. Look out!

  • Ian Chai, 2012-12-12 09:01:36

    This guy probably support slavery because the constition never say anything about color people have rights

  • , 2012-12-12 12:03:44

    This man has lost it please give him a brain scam

  • , 2012-12-12 12:48:18

    I’m a lawyer and I was taught that the Constitution is a living document that changes with the times. Scalia must have missed the first day of Constitutional Law.

  • Wayne M., 2012-12-13 16:39:14

    Perhaps Injustice Scalia needs to recuse himself from any decision on marriage equality since he has already made up his mind prior to the hearing of evidence on the issue. Scalia also sees the constitution as a dead document. If this is so, then the country is also dead. The fact is that there is knowledge and ongoing change that founders of the nation and constitution could not have forseen. For example, on the issue of homosexuality, there is a great deal of scientific and psychological information and understanding that simply did not exist so long ago. The real truth is that Scalia is using his judicial position to legislate his religious opinions - and that is definitely unconstitutional.

  • DanC, 2012-12-13 18:07:53

    For Anonymous, 2012-12-11 11:12:03 That was what was decided in Lawrence v Texas. In Scalia’s dissent, he said legalizing sodomy was part of the "homosexual agenda" a hateful, Christian-right political slogan that can’t be defined.

  • , 2012-12-14 19:12:44

    There are those who are known as "strict constructionists" in constitutional scholarship, and those who believe that the constitution is a document that was meant by the framers of the constitution to be a living document. Justice Scalia has made his position known for as long as he has been on the federal bench. Quite simply, if it is a right that is written in the constitution, then it is a federally protected right -- if the constitution is silent on the right, then it is left to the individual states to regulate the conduct. (I do not agree with his position, but it is a well-accepted constitutional analysis.). On the issue of a personal privacy protection, it has always been Justice Scalia’s position that there is nothing in the Constitution that protects personal privacy. It was only in older cases like Griswold v. Connecticut and the famous decision in Roe v. Wade that the decision of the Supreme Court established that a "right to privacy" exists in the "penumbral emanations" of the constitution. Justice Scalia, as well as any other strict constructionist of the constitution, do not believe that there are penumbral emanations to the federal constitution. If you believe that any particular groups’ rights should be protected, it is important to let your state representatives know that fact, because even Justice Scalia would agree that a state has the right to adopt laws that are mandated by its population. I hope this clears up some comments that were posted here by alleged constitutional law professors, who apparently have never heard of the concept of "strict construction" which is discussed in every law school constitutional law class.

  • DanC, 2012-12-14 20:48:19

    Chris - When Justice Scalia writes, in a challenge to the 2nd Amendment, that guns can be owned by individuals "for protection", where does it say that in the Constitution?

  • , 2012-12-14 23:19:26

    The second amendment expressly deals with the right to carry arms. So, according to a strict constructionist, any attempt to legislate issues concerning carrying firearms may be subject to US Supreme Court review. Remember, a strict constructionist’s thought process will not tell you what the Supreme Court’s final determination will be, but rather whether the Supreme Court should offer any opinion on the issue whatsoever (or whether the issue should be completely left to the states). In the field of gay rights cases, you’ll very rarely see an appellate lawyer arguing a "right to privacy" in the Supreme Court since that argument will automatically lose two of the justices (Scalia and Thomas). You are much more likely to see an experienced appellate attorney argue that gay Rights issues are governed by the "equal protection" clause or the "due process" clause since both of those are expressly mentioned in the constitution. (Although arguments under each clause has its pitfalls, at least the attorney won’t already have lost two judges’ votes because the issue is not mentioned in the constitution.). Good question, dang. Hope my answer helps.

  • , 2012-12-15 15:22:21

    And for the person who stated that the constitution is silent on the issue of slavery, I believe that a little research would go along way before posting such a thing. The 13th, 14th, and 15th amendment were expressly passed in response to slavery issues in this country (although they have been more widely interpreted since the "due process" clauses and "equal protection" clauses are contained in these amendments). It is true that slavery is not mentioned in the first ten amendments to the constitution, which is more commonly known as the bill of rights, but it is simply incorrect to state that the constitution does not address the issue of slavery. I encourage everyone to spend some time and read through the US Constitution and learn what is in the document -- it is a remarkably writen item that has stood the test of hundreds of years.

  • DanC, 2012-12-15 17:41:24

    Hmmm. Chris, sounds like you are going to law school. You should also study American history to help you understand the Constitution. When it was written, the divisive issue of slavery was purposely left out by Madison and Franklin and others because the young nation needed the South to survive. You are referring to amendments that were passed during and after the Civil War (see Lincoln, great movie). So, be a strict definitionist if you must but the original Constitution did not deal with slavery.

  • , 2012-12-15 19:35:12

    Dang, I’ve been an attorney for nearly 30 years, and my dual majors in college were history and political science. I did an overwhelming majority of my writings and essays throughout my undergraduate and post-graduate career on Abraham Lincoln and Thomas Jefferson. I prefer not to learn history through a three hour hollywood recreation. I did see the movie, and I feel badly if anyone were to base an entire analysis of the Civil War and its ensuing legislation upon that film. If you really want to know about Lincoln, may I suggest you read Carl Sandberg’s four volume biography of the man (Lincoln - The War Years). Or better yet, read the 9 volumes of original writings that were published by Rutgers University Press. (They are all written in Lincoln’s original handwriting and were copied from the Library of Congress.). I have read all of the material, and they are the prized gems of my personal library, and prefer my conclusions to those of a Hollywood director. Realize the original comment was that the "constitution never say anything about color people having rights". (That is exactly how the above noted comment was phrased.). I am sure that you must agree with me that the above quoted statement is absolutely incorrect, and I am really disappointed that folks don’t know what is in our constitution. After all, it’s not a very long document and could be easily read in an afternoon at the most. The original post to which I was responding did not limit itself to the bill of rights. I acknowledge again, as I did in my prior post that the 13th through 15th amendments were proposed and enacted long after the bill of rights was passed. 1864-1870. But, the last I saw, the 13th,14th, and 15th amendments were still part of the US Constituion. So, my response is absolutely correct, my friend. I welcome spirited discussion on political and historical issues, but I appreciate debate based upon historically correct facts. If you want to know the background of the slavery issue at the time of the drafting of the Constitution, perhaps a perusal of the federalist papers will help you understand it a little better. I would also commend to you the writings of President James Monroe, who was an unsung hero of the constitutional convention. Additionally, if you want to learn some more about the issues surrounding the northern states and the southern states and the purely economic issues that surrounded the negotiations of the clauses in the constitution, and the ultimate resolution of the issues givin rise to the Civil War,you may want to read some of the collected works of historian Lynton Thorne. Most of the founding fathers were slave owners at one point in their lives, although many had made personal choices to give their slaves freeman status before their deaths. Please note that I have never stated that I agree with constitutional analysis as a strict constructionist does, but I acknowledge that there are volumes and volumes written on strict constructionists (and being objective about an issue requires that fact to be acknowledged as well). And, whether you believe it or not,the Supreme Court review of California’s Prop 8 statute as well as the DOMA review will focus on the issue between states’ rights and the federal constitution -- this is the classic dispute between a strict constructionist and a liberal interpreter of the constitution. (Liberal is being used in that sentence not to espouse a political view, but to be used as the an expansive reader of constituional principles.) Thank you for your comments.

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