If Kanye West were to take a stab at Supreme Court editorializing, it might go something like this: Antonin Scalia does not care about gay people. Indeed, at a Princeton University seminar on Monday, the conservative justice compared homosexuality to murder when asked by a gay student about a 2003 opinion in which Scalia compared homosexuality to bestiality and incest. "If we cannot have moral feelings against homosexuality, can we have it against murder?" the justice asked rhetorically. "Can we have it against other things?"
The point, in Scalia's view, is that the government has the right to base laws on moral objections, even if he did acknowledge that murder and gay sex are "moral crimes" of a different magnitude. It is a view that he put forth, with characteristic acerbity, in his dissent to the 2003 case Lawrence v. Texas, in which the Supreme Court for the first time outlawed state anti-sodomy laws. It's hard to believe that less than 10 years ago a gay man could literally go to jail for having sex, and Scalia's dissent has aged about as well as one would expect. In his opinion, he warned that the majority's "homosexual agenda" could invalidate a whole host of laws based on moral traditions:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
In defending anti-sodomy laws, which he viewed to be a legitimate expression of the popular will, he also wrote:
Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's school, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
That's undoubtedly true, but nowadays, with the gay rights movement entering the mainstream, that kind of prejudice is more often called by its true name. As a devout Catholic, Scalia probably sees the matter differently. However, as Alexandra Petri at The Washington Post notes, "He can have moral feelings about homosexuality… but enshrining them in law is a different standard."
The sudden interest in Scalia's views on the "homosexual agenda" has been precipitated by the Supreme Court's recent decision to weigh the constitutionality of the Defense of Marriage Act, which prohibits federal recognition of same-sex marriages performed in states where it is legal. The court is also hearing a challenge to Proposition 8, a California law that bans gay marriage. If there was any doubt about which way Scalia would vote, he has put that to rest.
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