Justice Antonin Scalia has been on a tour to promote his new book, Reading Law, and giving a lot of talks at universities. During a recent talk at Princeton, a student during the Q&A session asked him to justify something he wrote earlier comparing laws against homosexuality to laws against beastiality and murder.
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…
“It’s a form of argument that I thought you would have known, which is called the `reduction to the absurd,’” Scalia told freshman Duncan 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.
Reduction to the absurd is indeed a useful intellectual exercise, especially in constitutional law. But in this case, it’s the reduction itself that is absurd because the analogy is so bad. We don’t outlaw murder because we have “moral feelings” about it; we outlaw murder because A) it obviously violates someone else’s right to life and B) because it is impossible to have a stable society in which people are free to commit murder. Neither of those thing apply to homosexuality.
Scalia knows this, of course. He knows that this is why the court he sits on applies standards like strict scrutiny, demanding that the government show that a particular law restricting someone’s freedom is the least restrictive means of achieving a compelling state interest. There is a crystal clear interest in prohibiting murder; there is no such interest in prohibiting homosexuality (even if it could do so, which it can’t).