He was asked to explain his support for bans on sodomy by gay student Duncan Hosie, and his reply has him in hot water.
"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
Scalia said he wasn't equating sodomy with murder, but instead comparing bans on both actions.
"I'm surprised you aren't persuaded," he said.
Scalia has a history of similar comments: in his time on the Supreme Court, he has written several dissenting opinions in cases involving gay rights and protections.
In 1996, he compared homosexuality to murder writing the dissent in a case in which the court struck down a Colorado anti-gay law.
(Romer v. Evans)The court's opinion contains grim, disapproving hints that Coloradans have been guilty of 'animus' or 'animosity' toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct.
And in 2003, when the court struck down a Texas law that incriminated gay sex:
(Lawrence v. Texas)The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable,' … the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The court today reaches the opposite conclusion.... This effectively decrees the end of all morals legislation...
Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?
With the Supreme Court set to tackle gay marriage by taking up the Defense of Marriage Act and California's Proposition 8 in the first half of 2013, Scalia will have another opportunity to voice his opinions on an issue in which he increasingly finds himself in the minority of Americans.
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