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Dec 14 2012

Scalia’s Terrible Analogy

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).

23 comments

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  1. 1
    Gretchen

    And he insulted a college freshman with a legitimate challenge to his stupid position in the process. What a scumbag.

  2. 2
    eric

    Nobody is proposing you not have moral feelings about it. Feel whatever you want about it. But “I have feelings about it” is an inadequate reason for making a conduct illegal.

    ***

    Ed – a case you wrote about earlier has now been settled. The graduate counseling student who was expelled because she wouldn’t advise a gay client? Reinstated. The school lost. Link.

  3. 3
    Pierce R. Butler

    … Scalia said, adding that legislative bodies can ban what they believe to be immoral…

    Please point out where it says that in the US Constitution, Big Tony!

  4. 4
    matty1

    You have to use conservative logic to rework the argument.

    we outlaw murder homosexuality because A) it obviously violates someone else’s right to life control other people’s private lives and B) because it is impossible to have a stable godly society in which people are free to commit murder.

  5. 5
    Steve Morrison

    In any case, that argument is not a reductio ad absurdam; it doesn’t show that something false would follow if the opposing argument were granted.

  6. 6
    Zinc Avenger (Sarcasm Tags 3.0 Compliant)

    Then lets reductio ad even more absurdum and say if we can have moral feelings against homosexuality, we can have moral feelings against heterosexuality.

  7. 7
    baal

    “If we cannot have moral feelings against homosexuality, can we have it against murder?”

    I threw things when I read this elsewhere yesterday. I then went home and ranted in the presence of my wife who graciously put up with me.

    He directly insults a student to his face while making a personal bigotry argument instead of something resembling legal one. This is not judicial temperament. This person doesn’t belong on the SCOTUS.

  8. 8
    Ray Ingles

    If we cannot have moral feelings against cotton/polyester blends (Leviticus 19:19, Deuteronomy 22:11), can we have it against murder? Can we have it against other things?

  9. 9
    Bronze Dog

    Scalia can’t tell the difference between bigotry and moral feelings. I think this is because he doesn’t use moral reasoning. We developed the instinct to feel revulsion at murder because widespread murder would undermine the safety of a society, leading to break down when its members feel safer on their own than in the group. Essentially, the reasoning behind the instinctive emotion is well understood, hence we can describe being repulsed by murder as a “moral feeling.”

    There is no moral reasoning behind bigotry against homosexuals, hence I cannot agree that homophobia is a “moral feeling.”

  10. 10
    trucreep

    Bleh I think a lot of people around here have misinterpreted what he was saying. He’s not comparing homosexuality to murder, he’s not saying they’re similar, and he is not saying we ban or adopt things on the basis of moral views.

    He’s saying that there are moral views that we as a society adopt, and used an extreme like murder because it is an easy example of the point he was making. He is not saying we adopt views based on a sense of morality, but that we have moral views towards things. I get that this is a sensitive subject, and there are a lot of terrible arguments out there pertaining to homosexuality and rape/incest/etc. That’s why I think we need to be extra careful (as skeptics especially) to not jump the gun when we see two words juxtaposed.

  11. 11
    Gretchen

    He’s saying that there are moral views that we as a society adopt, and used an extreme like murder because it is an easy example of the point he was making. He is not saying we adopt views based on a sense of morality, but that we have moral views towards things.

    No, he’s not. Or at least, not just that. Remember, he’s a Supreme Court justice. He’s talking about the law, and what the law should and can be.

    It’s a sensitive subject, but it looks to me like you’re misinterpreting him far more than anyone else here.

  12. 12
    composer99

    trucreep:

    I read through the OP and the first 9 comments after reading yours and nowhere did I read anyone suggesting Scalia was conflating homosexuality with murder. Merely using extremely poor reasoning to defend his position espoused in his book.

    Maybe I’m just being dense. Can you point me to where someone actually argues that Scalia suggests some sort of moral equivalency between the two?

    In addition, your statement

    and he is not saying we ban or adopt things on the basis of moral views.

    Appears to be false, as Scalia is quoted in the Huffington Post article linked to by Ed thusly:

    “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. [Emphasis mine.]

    Is there a substantial difference on banning a behaviour one believes to be immoral and “ban[ning] … things on the basis of moral views”?

  13. 13
    democommie

    Trucreep:

    I read your comment (and the others) and after thinking it all over, nah, fuck Tony Ducks. He’s beginning to make Thomas look like the soul of reason–and that is nearly fucking impossible to do.

  14. 14
    The Lorax

    He is actually using an argument here, a legitimate and well-defined one. Problem is, it’s known as a “straw man”.

  15. 15
    Raging Bee

    He’s not comparing homosexuality to murder, he’s not saying they’re similar…

    Yes, he is. When you conflate two things and imply that you can’t condone one without condoning the other, you are, in effect, explicitly saying they are similar. Why else would you not be able to judge them separately?

    “Bleh” back to you. Your efforts to excuse or “explain” Scalia’s bigoted horseshit are just lame and pathetic. Who do you think you’re fooling?

  16. 16
    Raging Bee

    Yo, Lorax, I got some scarecrow on the line…he says you insulted him.

  17. 17
    lofgren

    God I hate him so much.

    One of the things that is so frustrating about him is that even if you grant his premise – that broad moral condemnation is sufficient basis for restricting consensual sexual behavior – it doesn’t explain why sodomy laws in particular should be defended. Why it’s almost as if he doesn’t believe that gay people (or many, many straight couples given that even oral sex was forbidden under some definitions of sodomy) should have a voice at all.

  18. 18
    Michael Heath

    Ed writes:

    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.

    I strongly disagree J. Scalia knows better. I’m overwhelmed with smart people who are conservatives who make arguments which are equally incoherent; but only on certain topics which trigger a sense of hate and fear. Science has revealed why as Chris Mooney reports in his latest book, The Republican Brain, a broader analysis of findings than Altemeyer’s work. Conservative Christians simply aren’t reasoning as they would on a subject which doesn’t inflame them.

    J. Scalia has long demonstrated he suffers from the same affliction as other U.S. conservative Christians (read, authoritarians) where he’s getting worse at a rate which appears similar to the rate the whole conservative movement is descending into lunacy. I.e., he believes those viral emails.

  19. 19
    chrisdevries

    How is this guy one of the most powerful people in the United States? I have followed his public interviews over the years and it occurs to me that he is basically making it up as he goes along. If something fits his preconceived notions, uses them to defend it. If he needs to make an argument that goes against statements he’s made in the past, he does so without giving a good reason why it should be an exception to his “standards”. There is no way he would ever find in favor of a “liberal” cause like gay marriage or gun control, even if there were perfectly legal reasons to do so. He uses his personal “moral code” to decide his judicial opinions and this is not only improper, it is fundamentally immoral when he is supposed to be an impartial jurist.

    Asshole.

  20. 20
    Azkyroth Drinked the Grammar Too :)

    He is not saying we adopt views based on a sense of morality, but that we have moral views towards things.

    What.

  21. 21
    democommie

    @chrisdevries:

    “Asshole” is really the only word that you needed.

  22. 22
    Michael Heath

    chrisdevries writes:

    If [J. Scalia] needs to make an argument that goes against statements he’s made in the past, he does so without giving a good reason why it should be an exception to his “standards”.

    Actually it’s even worse than that. In his book, A Matter of Interpretation, J. Scalia admits he abondons his originalist approach to jurisprudence if this approach results in positions he rejects. That’s incredibly hypocritical given his repeated and boisterous condemnation against non-conservative jurists for their own supposed inconsistency for supposedly partisan purposes. “Supposed” given that most of the time, those jurists he criticizes were consistently applying their interpretative methods; J. Scalia is a master projector of his own worst attributes.

    chrisdevries writes:

    There is no way he would ever find in favor of a “liberal” cause like gay marriage or gun control, even if there were perfectly legal reasons to do so.

    There are exceptions, though very few. For example, in Texas v. Johnson he joined the majority defending the speech rights of those who would desecrate the U.S. flag. So as an attribute you are correct, but I think you go too far framing your assertion in absolutist language.

  23. 23
    chrisdevries

    Yea, I suppose I was a bit frustrated when I wrote that. Nonetheless, the case you mention is, in my mind, more in line with libertarian ethics than liberal ones (I guess technically it’s in the overlap area but since Scalia is a social conservative most of the time, it does go against his normal pattern of behavior so your point stands I think).

    What I don’t understand is how he manages to justify ignoring his responsibilities. I guess it’s an example of conservative psychology (as Jonathan Haidt has explained) plus a good bit of projection so he can feel smug that he would never be inconsistent (even though he admits to it as you said). Democommie was right: the best word that truly gets to the heart of who he is as a person and a jurist is “asshole.”

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