Antonin Scalia Defends Legal Writings Some View As Offensive, Anti-Gay

[Brainstormy]

This discussion thread was locked as off-topic by muriel_volestrangler (a host of the Latest Breaking News forum).

Source: Huffington Post

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."


Read more: http://www.huffingtonpost.com/2012/12/10/antonin-scalia-book-tour-legal-writings-antigay_n_2274413.html

[Bjorn Against]

1. So he believes there is a parallel between gay marriage and murder

I am a strong believer in evolution but people like this sometimes make me doubt, this guy is clearly still living in the stone age and I have a hard time believing he ever evolved with the rest of us. The thought that we have someone on the Supreme Court who compares gay sex to murder is pathetic.

[Volaris]

8. He's stating that the parrallel is that The Legislature can basically

ban whatever the hell it wants to, until a Court decides that enforcing that ban is unconstitutional, and tells said Legislature to go fuck itself.
I'm not saying it's a great argument, but Scalia CAN be pretty damn good at splitting hairs when he wants to be, his problem is that he doesn't seem to see a lot of difference between using a scalpel and a sledghammer. His defense of this short-sightedness is that LEGALLY, it doesn't make a damn bit of difference which gets used... split is split, and it matters NOT how the splitting actually got done.

Not saying I agree, just saying.

[SemperEadem]

12. scalia is always the one crying about laws not being written well enough

so that the courts wouldn't have to step in and clarify them---but now he's contradicting himself, although he would say that he wasn't because in his mind, he's always right about everything. IOW_-there's no arguing sense into his thick brain.

[alcibiades_mystery]

2. Can we have moral feelings against singing in church?

If we can't have moral feelings against singing in church, how can we have them against murder?

So if a majority decides that we should have a law banning singing in church - and it's focused on that particular (morally repugnant to the majority) behavior, then that should be just fine with Justice Scalia. If somebody were to pose a religious objection, we could just modify the law to ban singing in any tax-exempt organizational building that is zoned / approved to hold more than 30 people at one time.

In this way, a law banning singing in church would be perfectly Constitutional by Scalia's own logic.

[asjr]

3. If Scalia does not recuse himself from the DOMA hearing there

should be someone there to yank him out of the courtroom. He is not God but certainly conisders himself God.

[davidpdx]

4. I've said it once and I'll say it 1,000 times

The day he dies I'll dance on the assholes grave. He's the one I really just can't stand.

[xchrom]

5. Then I'll wait to piss on his grave til you're done dancing on it. Nt

[swimboy]

9. You know

this would make for a righteous future DU meet-up.

[DetlefK]

6. Another sentence in the article got me thinking.

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

Does that mean that he regards the 2nd Amendment as limited to flintlock-rifles?

[thesquanderer]

7. He also 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."

There's also nothing in there about homosexuality, and nothing about marriage. So I guess he'll be voting to allow states to permit gay marriage...?

[happyslug]

10. Scalia would support a state that VOTES for gay marriage

On the other hand he will OPPOSE saying the Constitution requires states to recognize such marriages. Scalia is a strict constructionist of the Constitution and that includes Flexibility is left to the Legislative branches of Government. i.e. if a State passes a law recognizing Gay Marriages, the US Constitution does NOT forbid that. On the other hand if a State BANS Gay Marriages, the US Constitution, again, does not ban that. He wants to restrict "Equal Protection of the Laws" to protection it was aimed at, restrictions based on race.

Now, Scalia is also a Corporatist, I term I use to describe people who support Corporate America. In that regard Scalia is happy to extent "Equal Protection of the Laws" to Corporations, without seeing how that opens up "Equal Protection of the Laws" to other groups.

Now, one side of the "Gay Marriage" debate and the use of the "Equal Protection of the Laws" clause of the 14th amendment is that it requires the court to define HOW Equal must the laws be? Laws, by definition, group people into different groups, people who own property, people who do not, people who drive on the public roads, people who do not, people who can form a union, people who can not etc. The Equal Protection clause has NEVER been expanded to demand perfect equality for such perfection is impossible and inherently interferes with the legislative process. Thus how far does the "Equal Protection of the Laws" clause go? Scalia says not as far as who can marry, supporters of gay marriages says to include gay marriage.

On top of this you have the issue of Federal Supremacy. The Defense of Marriage Act puts a Federal Rule on Federal Benefits as to what is a marriage. It does NOT define marriage, leaving that up to the states, but forbids, for federal purposes only, for any federal agency to recognize gay marriages. Under the Supremacy Act of the US Constitution, such a law supersedes state law as to marriage. The Attack on the Defense of Marriage Act is that is handles Gay marriages different then straight marriages, and as such, it is claim, that difference in treatment violates the Federal Equal Protection Claim. The Defense is under the Federal Supremacy Clause the Federal Government has the RIGHT to recognize what marriages it wants to recognize.

In Scalia's mind the above is simple, the "Equal Protection of the Laws" does NOT extend to gay marriages and once he makes that decision, the Federal Government can recognize them or not, but that is up to Congress not the Courts and thus DOMA is constitutional under the Supremacy clause of the US Constitution.

On the other hand if a state wants to recognize Gay Marriages, the Federal Congress can not say NO, but Congress can still deny such married couple any FEDERAL marriage benefits. This sounds like a conflict but it is not, it is a deference to the legislative branches of government, something Scalia has always been big on, for the flexibility is in the legislative branch not the Judicial branch of government.

[JudyM]

15. Corporations enjoy more 'equal protection' than the LGBT community...

... notwithstanding that LGBTs should fairly be viewed as a 'discrete insular minority' that deserves a heightened level of judicial scrutiny for anti-LGBT legislation such as DOMA.

[happyslug]

17. Remember that was the "Secret Agenda" of Congress when the 14th was passed

No record of such "Secret Agenda" is reported at the time the 14th was proposed, various proposed constitutional amendments were proposed in the 1860s to protect corporations, but none of them even survived to get a vote in a committee let alone Congress but it was the Lawyer for the Southern Pacific who said it was intention of Congress to expand Equal Protection to Corporations when he was in Congress when the 14th was passed. This is the start of Corporations as persons doctrine in the 1880s, an expansion of the term "Equal Protection of the laws" to mean something beyond racial discrimination.

True Conservatives should support the Court to reverse its decision in that case and rule Corporations are NOT people and thus NOT subject to Equal Protection of the laws Clause of the 14th amendment. This would mean other groups will also NOT be able to use that doctrine but it is worth the price if we can get corporations under control.

[Volaris]

11. (on Edit) Happyslug you beat me to it lol, but I'm leaving it up anyway...

This is another test case for him as a Jurist, IMHO...if he actually IS a Strict Constructionist, and hews to the above quote, his opinion will basiclly say the following...

I could care less what the Congress makes Legal, or not. It's up to the People. If the Majority wants it legal, then so be it. If not, well, then that's fine too. If the People don't like what the Congress does, then they have a mechinism to get a new damn Congress that will do what they want. HUMAN SLAVERY was LEGAL until Congress (at the behest of The People) said otherwise. But after they did, holy COW has it been for-sure NOT legal ever since.
The Rights the Constitution lays out are the ones it actually LAYS OUT. That whole "Pursuit of Happiness" thing? That's pretty vauge, and the meaning and limits therefore, are left up to The People (through the proxy of thier Legislature) to decide.

Unless he's totally bullshitting us on that whole Constructionist thing and making decisions on the MORALITY of the subject mattter instead of the actual CONSTITUTION, the above will be the crux of his opinion, and he will vote to UPHOLD DOMA as the legislated will of The People, beause, he will say, The People have already made a decision, and to make a new one (or UNMAKE the one that already exists on the Books), will take CONGRESS changing the Law, not "his Court".


If you can get your head around the fact that the Right has been using this Judical tactic as a Moral Hammer for 30 years, it's not actually a bad argumentive place to be. It allows the Government to do all kinds of useful things that the Constitution never EXPLICTLY defined. (like The New Deal, for instance). It just sucks that it HAS become the "hand" that keeps wielding the Hammer that the Idiot Right loves so much.

IF the Court votes to overturn DOMA, I would bet he would be FINE with States passing whatever laws they want. As long as there is no FEDERAL ban in existance or on the Books, States can do pretty much what the hell they want, in his opinion.

[AAO]

13. Supreme Jackass.

[lsewpershad]

14. +1

[Yavin4]

16. I Find Scalia to be immoral

Let's ban his greasy ass.

[muriel_volestrangler]

18. Locking - duplicate thread

of http://www.democraticunderground.com/1014331796 . Please continue discussion there. Thanks.