By Alex Caro
In December, a national controversy erupted over the offensiveness of Supreme Court Justice Antonin Scalia’s comparison of homosexuality with bestiality and murder. These comparisons reflect poor reasoning on Scalia’s part, but the comparisons themselves are not offensive.
Exactly a week after I had the opportunity to meet Scalia through my Justice and Law class, he gave a lecture at Princeton University. There, a gay Princeton student named Duncan Hosie questioned Scalia for comparing homosexual sex with murder and bestiality in his dissents in the 1996 Romer v. Evans and 2003 Lawrence v. Texas decisions. In Lawrence, the Supreme Court ruled 6-3 that laws prohibiting homosexual sodomy were unconstitutional.
Hosie did not object to Scalia’s line of reasoning, stating that the reasoning was both “defensible and legitimate.” Rather, Hosie asked Scalia to recant the remarks because he perceived them to be offensive. Scalia’s argument is not offensive, unless one fails to understand the nature of the argument. However, whether or not the argument is “offensive” is simply irrelevant to whether or not it is valid, and therefore Hosie’s objection is frivolous.
Scalia was not comparing homosexuality to murder or bestiality in their degree of immorality. Instead, he was making the case that laws based on morality are a necessity. His argument was essentially that without laws based on morality, even behaviors as extreme as murder and bestiality would be legal.
Nevertheless, Hosie and Scalia are both wrong in their belief that laws prohibiting homosexual sodomy are either defensible or legitimate. The Constitution is an anti-majoritarian document; it protects the rights of political minorities from the tyranny of the majority. The Supreme Court has stated that this is especially true for minorities that have a history of discrimination, an immutable characteristic, and can contribute meaningfully to society. Gay people meet all of these requisites. Although some do not believe homosexuality is immutable, the science says otherwise. While we do not know the exact causes of human sexual orientation, we do know that sexual orientation cannot be changed. The Court also requires a high level of scrutiny for laws dependent on sex-based classifications. In this case, whether or not sodomy was illegal in Texas was dependent on the sex of the individuals involved.
While the Constitution allows for laws on the basis of moral feelings, these laws become unconstitutional when they are not equally applied to all citizens, regardless of color or sex. Scalia has argued that laws prohibiting homosexual sodomy are constitutional because they are applied equally to men and women. This argument is about as convincing as the argument that laws prohibiting marriage between whites and blacks are constitutional because they are equally applied to whites and blacks. In fact, on April 10, 1967, the Assistant Attorney General of Virginia made exactly that argument before the Supreme Court in regard to interracial couples, and the Court rightly rejected that reasoning in a case known as Loving v. Virginia.
However, Scalia was right about one thing. In his Lawrence dissent he noted, “[the majority’s] reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” This is true: laws that prohibit sexual relations or marriage on the basis of race or sex are patently indefensible, illegitimate, and unconstitutional and rightly so. Such laws are far more offensive than a mere argument could ever be.
Alex Caro is a junior in the Washington Semester Program.