The justice’s misunderstanding of morality, and how it leads him astray in cases about homosexuality.
By Nathaniel Frank
Posted Tuesday, June 25, 2013
In a speech last week titled “Mullahs of the West: Judges as Moral Arbiters,” Justice Antonin Scalia told the North Carolina Bar Association that the court has no place acting as a “judge moralist” in issues better left to the people. Since judges aren’t qualified—or constitutionally authorized—to set moral standards, he argued, the people should decide what’s morally acceptable.
But does Scalia, whose quarter-century on the bench has marked him as the court’s moral scold for his finger-wagging views on social issues, have a coherent understanding of what it means to say something is or isn’t moral, and of morality’s proper role in the law?
Scalia would have you believe it’s liberal, pro-gay sympathizers who are imposing their own brand of moral laxity on the nation, and unconstitutionally using the courts to do it. His angry dissent in the 2003 Lawrence v. Texas case ending sodomy bans—decided 10 years ago this week—blasted the court for embracing “a law-profession culture that has largely signed on to the so-called homosexual agenda [which is] directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Ever since, Scalia has been railing against the loss of “moral opprobrium” as a legitimate basis for passing laws. Scalia implies that whatever the people feel should rule the day, constitutional rights be damned. “Countless judicial decisions and legislative enactments,” he wrote, “have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” A long string of state laws, he argued, are “sustainable only in light of” the court’s “validation of laws based on moral choices,” including bans on incest, prostitution, masturbation, adultery, fornication, bestiality, public indecency and selling sex toys.