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Should Justice Scalia Apologize?

By Robyn Hagan Cain | Last updated on

Justice Antonin Scalia moseyed over to Princeton University on Monday to promote "Reading Law." It didn't go too well.

We dare say the only thing anyone will remember from the lecture is a question from a student about Scalia's dissents in Lawrence v. Texas and Romer v. Evans, in which the jurist compared homosexuality to murder, polygamy, and cruelty to animals.

In both dissents, Justice Scalia wrote that states should be permitted to legislate their disapproval for homosexual conduct, just as they do for murder and bestiality. During a question-and-answer session, Princeton Freshman Duncan Hosie told Scalia:

I think there is a fundamental difference between arguing the Constitution does not protect gay sex, which is a defensible and legitimate legal position I disagree with, and comparing gays to people who commit murder or engage in bestiality. Do you have any regret or shame for drawing these comparisons you did in your dissents?

Scalia defended his arguments, saying, "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things? Of course we can. I don't apologize for the things I raised. I'm not comparing homosexuality to murder. I'm comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I'm comparing that with respect to murder and that with respect to homosexuality," The Associated Press reports.

Scalia says it's all about making an argument via reduction to the absurd. New York City Council Speaker Christine Quinn thinks that the comment, itself, is absurd, and wants an apology.

"The justice should apologize ... It's offensive. Sexual orientation is who we are as people. It's how we're created ... Don't compare me to a murderer because I'm a lesbian," Quinn told Chris Matthews on MSNBC's "Hardball."

Justice Scalia had been known to make outrageous comments in the past, but his remarks were particularly ill-timed considering that the Supreme Court agreed to hear two same-sex marriage cases last week. (And one of those cases was previously decided based on the Court's reasoning in Romer.) In fairness, however, Scalia was responding to a question; he didn't raise the issue sua sponte.

Realistically, Scalia isn't going to apologize, so let's shift this debate.

Over the next few months, we're going to hear an extended discussion about the similarities and differences between the same-sex marriage cases and the Loving v. Virginia ruling, which concluded that anti-miscegenation laws were unconstitutional.

From Scalia's standpoint, a state's citizens should be permitted to ban activity that they find morally reprehensible, including same-sex marriage. But isn't that what Virginia attempted to do with the anti-miscegenation law that the Court overturned more than 40 years ago? Can limitations on same-sex marriage be distinguished from anti-miscegenation laws just because the latter established criminal penalties for interracial marriages?

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